New Draft of Medical Marijuana Testing Regulations

By Adam Trenk and Jonathan Udell | Rose Law Group Reporter

As a result of SB 1494 enacted last year widespread medical marijuana testing will begin in November 2020. Over the past year, Arizona’s Department of Health Services has been working closely with the medical marijuana testing advisory council and other cannabis industry stakeholders to develop new regulations governing medical marijuana testing.

The department issued the first draft of its regulations in July 2019 and took feedback releasing another draft in February. A third draft of the regulations was released earlier this week.

The third draft contains some substantive changes, yet maintains the earlier drafts’ testing regime. Specifically, this new version imposes substantial regulations on dispensaries, including its requirements that dispensaries adopt new policies and procedures for inventory control policies, inter-dispensary marijuana transfers, disposing of unusable marijuana, and providing marijuana to laboratories for testing.

Dispensaries would also need to adopt testing policies and procedures, which must set forth the substances to be tested, how untested batches will remain segregated from tested batches, how sampling should occur, and how dispensary agents ought to respond to failing test results. Additionally, if adopted, the new draft rules would require dispensaries to employ policies and procedures for remediating and/or disposing of batches that fail laboratory testing, and mandate updates to dispensary Patient Education & Support policies to include informing patients of their right to receive a copy of products’ final test report.

The recent draft also changes the proposed labeling requirements for dispensaries. If adopted, labels would then have to include potency figures, the weight of the marijuana or marijuana product being purchased and “[a] list of all chemical additives, including nonorganic pesticides, herbicides, and fertilizers, used in the cultivation and production of” the product. Consistent with this provision, dispensaries selling marijuana and marijuana products to other dispensaries would need to ensure that the purchasing dispensary is aware of all chemical additives used in the marijuana’s cultivation. Further, dispensaries will now need to use a specific sampling procedure if or when the draft regulations take force.

In addition to policy/procedure changes and labeling requirements, DHS’ new draft also modifies the list of substances to be tested. The most recently proposed table of analytes (substances to be tested for) includes new microbial contaminants and residual solvents to the list of things dispensaries must test. The new microbial contaminants include two forms of mycotoxins: (1) Aflatoxin B1, B2, G1, and G2, and (2) Ochratoxin A. The residual solvents that may need to be tested for are butanes, heptane, hexanes, pentanes, and xylenes.

The recent draft regulations go on to introduce specific testing procedures that laboratories must follow. Further, the laboratory must designate specific areas for (1) testing microbial contaminants, (2) testing other contaminants, and (3) storing marijuana and marijuana products.

Finally, the March draft also proposes a set of calibration rules for testing equipment and instrumentation, allows for new analytical methods, introduces maintenance rules for testing equipment, and allows laboratories to use “data qualifier notations” to identify suspect tests that produced scientifically valid and defensible results.

For a more detailed analysis of what these rules mean for your business, you can review a copy of the draft regulations here or contact us at the Rose Law Group to work with our team of experienced medical marijuana attorneys.

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