About a month after California voters legalized recreational marijuana in November—creating for the state’s booming marijuana industry, already on pace to record roughly $1 billion in taxable sales that year, opportunity for stupendous growth in the near future—attorney Mark Morrison met someone he describes only as a cannabis industry “insider.”
In the course of a “casual conversation,” Morrison says the insider shared a little secret: Most of the products sold in California’s more than 1,000 medical cannabis dispensaries are tainted with pesticides.
Medical marijuana has been legal for adults in California since 1996, and cannabis has been openly and widely available for sale in storefront retail outlets since at least the early 2000s.
But unlike in Colorado, Oregon and Washington—where marijuana products have been recalled by authorities for violating pesticide restrictions several times—marijuana sold in California is not subject to mandatory third-party testing.
All assurances of quality control are up to the dispensary where the product was sold and/or the product manufacturer who made it—and such claims are not verified.
But under an environmental protection law called Prop. 65, businesses are required to inform consumers if a product contains any of the “known carcinogens” on a lengthy public list. Among the substances “known to the state of California” to cause cancer, birth defects and other health problems are marijuana smoke itself, and the chemicals myclobutanil (also a fungicide), carbaryl, and malathion, commonly-used pesticides.
According to Morrison’s insider, the marijuana industry was “finding 50 to 75 percent of [its] products… tainted with pesticides,” including chemicals on the Prop. 65 list, according to an account of their conversation Morrison shared with High Times during a telephone conversation this week.
“I said, ‘Wow, if what you’re telling me is true, consumers are unknowingly buying and consuming a dirty product,’” Morrison said. “They said, ‘Yep, that’s what’s happening.’ I almost could not believe this.”
Troubled and intrigued, Morrison spent the next few months acquiring popular marijuana products—pre-rolled joints, vaporizer pen cartridges with CO2 oil and some of the industry’s best-known brand-name edibles—and sent them to a lab for testing.
The lab, which Morrison did not name, confirmed the insider’s account, he claims.
As a result, in early May, Morrison mailed notices to 675 of the state’s more than 1,000 dispensaries—including some of the bigger and better known retail marijuana outlets in San Francisco, Oakland, San Jose, Los Angeles, Sacramento and the Central Valley—all of whom, he alleges, sold products that contained unsafe levels of pesticides.
Written on behalf of Michael Murphy and the “Clean Cannabis Initiative,” whom Morrison identifies as “a client… concerned” about product safety, the notices inform the 675 dispensaries that they are in violation of Prop. 65’s requirement to inform consumers about the presence of chemicals in edible marijuana products.
According to Morrison, products claimed to be tainted with pesticides on the Prop. 65 list include edibles made by Korova—famous within the industry for its high-potency products, including one offering with 1,000 milligrams of THC—as well as Cheeba Chews and Kushy Punch, the notices claim.
Tainted products reportedly include Korova’s 1,000-milligram “black bar,” its 500-milligram “5150 bar” and several different cookies and brownies, according to Morrison, as well as Cheeba Chews’ 70-milligram sativa and hybrid products.
According to the notices, products were sold with the banned pesticides during a period beginning in July 2015.
Some of the notices, since withdrawn, also claimed products made by Kiva violated the Prop. 65 requirements for malathion. Malathion was added to the Prop. 65 list in May 2016, but did not require public notification until last month.
Product manufacturers contacted by High Times disputed Morrison’s findings and declared their products safe. Morrison has yet to publicly share his test results.
In a letter sent to its dispensary partners on May 11, Kiva stopped short of declaring its products pesticide-free, but said it had strengthened its testing protocols after Morrison’s notices went out.
Generally, marijuana edibles are made by combining marijuana trim with oil or butter. The marijuana-laced oil or butter is then used in the cooking process.
Kiva claims to test everything three times: when the raw marijuana shake and trim is received from suppliers; before the oil and butter is made into an edible; and finally when the finished edibles are ready for distribution to retailers.
A similar protocol exists at Korova, where, “To the best of our knowledge, our products are fine,” said Henry Wykowski, a prominent San Francisco-based marijuana attorney who is representing Korova.
No patients buying Korova products have reported any negative health effects, said Wykowski, and no dispensaries have reported receiving tainted product.
But, “if there’s a technical issue here, we’re going to address it,” Wykowski said.
Meanwhile, almost simultaneously, several dozen other dispensaries and marijuana product manufacturers have received separate notices, sent from at least two other attorneys acting on behalf of two other clients, alleging violations of Prop. 65 for failing to inform cannabis patients of marijuana smoke’s health hazards.
Though several studies conducted in Europe suggest that compounds in marijuana may help shrink tumors and ergo fight cancer, marijuana smoke has been listed as a cancer-causing carcinogen in California since 2009.
In the past, dispensaries receiving Prop. 65 notices have been compelled to post warnings that read, in part, “Marijuana smoke is a chemical known to the state of California to cause cancer.”
Those dispensaries have also had to pay settlements that, including attorney’s fees, range from $22,500 to $78,000, the figure paid by San Francisco-based SPARC, one of the city’s biggest dispensaries, and Eaze, a prominent marijuana-delivery software platform.
If those cases are any indication, California’s marijuana dispensaries are currently facing fines totaling tens of millions of dollars.
Dispensaries receiving a letter alleging a violation of Prop. 65 have 60 days to respond, either with a settlement or by disputing the findings, at which point a civil lawsuit can be filed.
In Santa Clara County alone, court records show, 10 San Jose-area dispensaries have been sued by attorney Matthew Maclear, who is working on behalf of a client named Clifford Brechner and Brechner’s “Center for Advanced Public Awareness.”
Little public information about these entities is available, and neither Michael Murphy of the Clean Cannabis Initiative, LLC, Morrison’s client, nor Brechner were available for interviews.
In the case of the Center for Advanced Public Awareness, the organization is less than two years old, according to notices filed with the Secretary of State, and its address in a Sacramento-area business suite is shared with other organizations, including a medical billing company and law firms. There is no “Clean Cannabis Initiative LLC” registered in the state of California, state records show.
The state attorney general’s office, or any one of California’s 58 district attorneys, all of whom received a copy of each notice, can also file civil lawsuits enforcing Prop. 65.
Attorney General Xavier Becerra’s office is currently reviewing the letters and deciding whether to take action, Morrison told High Times.
In an email, a spokesperson for Becerra said only that “we are reviewing the notices and evaluating our options.”
In the meantime, the multiple waves of Prop. 65 notices from multiple sources have set off a maelstrom of what Wykowski called “concern and confusion” within the state’s marijuana industry—and at a very sensitive time.
State lawmakers and the marijuana industry are currently quibbling over how much residue from pesticides and other toxins will be allowed in California cannabis. Draft pesticide controls, proposed earlier this year by the state’s Bureau of Medical Cannabis Regulation, have been derided as too strict by some marijuana industry insiders.
“Unfortunately, some of the regulations as written will create undo [sic] burden upon the industry and carry a strong probability of limiting supply to medical patients,” said Dave Egerton, a vice-president at CW Analytical, an Oakland-based marijuana testing lab, in an article published by Cannabis Industry Journal.
As proposed, California’s proposal for tested cannabis include “pesticide levels so low it pushes the limits of the most sophisticated and modern analytical equipment while going far past sensible limits,” Jeffrey Raber, CEO of The Werc Shop, another prominent testing lab, said in the same article.
Meanwhile, absent government regulations, the cannabis industry has appeared unwilling or unable to self-regulate.
Two of Health Canada’s federally-licensed medical marijuana producers used myclobutanil, available under the brand name Eagle 20, on cannabis products distributed to patients. The products were recalled, but not before patients who smoked the tainted marijuana reported health problems including breathing difficulties and rashes.
In both Oregon and Colorado, products sold on dispensary shelves have been recalled after testing turned up banned pesticides.
And allegations of tainted product in the California marketplace have increased in the past year.
In the fall, Steep Hill Labs, a Berkeley-based marijuana testing lab, reported that 84 percent of the marijuana it tested during a one-month period prior to Election Day tested positive for pesticides.
And in February, while Morrison was conducting his own tests, 41 out of the 44 marijuana products obtained from Los Angeles-area dispensaries and sent for testing by an NBC affiliate had pesticides.
Morrison calls himself a liberal who’s “anti-Trump” and “pro-cannabis.” He also leads what he calls a “chemical-free, natural life, with organic foods,” and wants California cannabis consumers to enjoy similar options.
Ideally, he says, the state’s marijuana providers will start making products that are truly pesticide-free—or, if not, they’ll label products appropriately, and leave it up to consumers to decide what products (pesticide-free, or not) to buy.
In the meantime, he said, the notices are bringing needed attention to a matter of public health that the cannabis industry has known about for years.
“I think the industry knows it. It isn’t a secret,” he said. “This is the kind of case I live for as a lawyer—because truth and justice are on my side.”
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