By Lester BlackFeb 22, 2024

Banned pesticides keep showing up in California’s legal weed products.

Legalization was supposed to solve this problem. When California’s voters legalized pot in 2016, they voted for an initiative that specifically called on the state to regulate pesticides in cannabis products. 

However, an SFGATE investigation has found numerous problems plaguing the state’s pesticide rules, including labs falsifying safety tests and stores selling pot contaminated with banned chemicals. Meanwhile, the state’s own pot regulator, the Department of Cannabis Control (DCC), has admitted it is currently unable to test for pesticide contamination in some pot products. And due to a lack of transparency at the agency, consumers might never know they’re consuming pesticides or other contaminants. 

When the DCC suspects a product is contaminated, it sends secret product “embargoes” to pot companies, leaving the public in the dark — even when stores violate embargoes by selling the potentially dangerous products. Last year, SFGATE learned about one of these secret warnings and told the public about the three embargoed products. The DCC finally warned the public about one of the products two months later, when the producer issued a voluntary recall; the agency has yet to publicly address safety issues about the other two products.

Nicole Elliott, the director of California’s Department of Cannabis Control, declined months of interview requests for this investigation, and the agency has refused to answer the majority of SFGATE’s questions, citing “ongoing investigations,” or to make any agency experts available for an interview.

California’s pot regulations are not a total failure; studies have shown that pot purchased at legal stores is less likely to be contaminated than illicit cannabis. However, Josh Swider, the CEO of Infinite Chemical Analysis Labs, a cannabis testing lab in San Diego, said the DCC’s lack of enforcement has allowed contaminated pot to leak onto the shelves of legal stores across the state.

“It’s a broken system. You can’t say it’s not,” Swider said.

Secrecy — at a price

Pesticides present a uniquely complicated problem for the cannabis industry. While most American farmers can rely on federally funded research and regulations around the use of toxins to keep bugs at bay, little of that research looks at the safety of actually smoking the residue left behind by pesticides. And even if there were research, the U.S. Agriculture Department and other national regulators are prevented from offering any guidance on safe use to growers and state regulators, because the drug is illegal at the federal level.

Without any federal guidance, states have been left to decide themselves what pesticides to allow or ban in cannabis. California has some of the strictest rules in the country, banning 21 pesticides and requiring testing of all legal cannabis products, including for pesticides, heavy metals, mold and potency. Companies in California must pay state-licensed private labs to conduct these safety screens.

It’s clear these protections have reduced the amount of pot contaminated with pesticides found in stores, according to Los Angeles-based cannabis scientist Jeffrey Raber, one of the first scientists to publish evidence that pot smokers are exposed to pesticides when they smoke contaminated pot.

“You can see lab data before regulation and afterwards, and it is way, way, way better,” Raber said. However, despite millions of dollars being spent every year on cannabis testing in California, pot containing banned chemicals continues to be sold in legal stores.
 
Taking contaminated pot off the shelves is a multi-part process. It starts with an embargo, a temporary ban on sales issued when the state’s DCC has evidence that a product on the market contains banned pesticides. Regulators are then supposed to conduct an investigation which can culminate in a recall of the product.

While recalls are announced publicly, embargoes are only sent out to distributors and stores. The public has no way to access the embargoes, and the DCC has denied multiple record requests from SFGATE to release information about embargoed products, claiming they count as “investigative documents.”

But that secrecy comes at a price: If the embargo system doesn’t work, consumers may buy and consume contaminated pot without having any idea.

‘It’s very disappointing’

That’s exactly what happened last November, when SFGATE received a tip about three products that had recently been embargoed by the DCC. The cannabis regulator’s secret embargo notice said it was now illegal to sell these specific products because they were “adulterated,” without describing any other details.

But on Nov. 17, eight days after the embargo was supposedly issued, an SFGATE reporter was able to purchase one of the banned products, a vape cartridge produced by Cru Cannabis, at Bloomerang, a cannabis store in San Francisco. SFGATE then sent the cartridge to Anresco Laboratories, a DCC-licensed lab in San Francisco, which found trace amounts of chlorfenapyr, a dangerous pesticide that’s banned in California cannabis products. Cru Cannabis did not return multiple SFGATE requests for comment.

A manager for the Bloomerang cannabis store, who was granted anonymity in accordance with Hearst’s ethics policy, told SFGATE in January that the DCC hadn’t told the store about the embargo until nearly two months after SFGATE published a story documenting the embargo violation, at which point the DCC contacted the store to say “there was an illegal pesticide in that particular batch that we sold,” according to the manager.

A DCC spokesperson told SFGATE in February that the store was notified of the original embargo and has since been cited for selling the embargoed product. A second Bloomerang manager who also declined to share their name told SFGATE in February that the DCC fined the store $50,000 for selling five of the embargoed vape pens (the store had originally told SFGATE that 12 of the contaminated pens were sold to the public). The DCC has yet to warn the public about the vape pen.

High doses of chlorfenapyr can be lethal to humans, although the trace amounts found in the Cru Cannabis vape pen are unlikely to cause immediate harm, according to Raber. Still, he said SFGATE’s investigation has raised serious concerns regarding California’s legal weed market.

“It’s very disappointing,” Raber said. “… It makes you wonder how much other stuff went down that same path”

The state’s lab falls short

California’s strict pesticide testing requirements should have caught a pesticide-laden vape pen like the Cru Cannabis product before it ever hit retail shelves. However, these tests have been ridiculed for years for being wildly inaccurate and unable to keep toxic products out of pot. And even the state regulator admitted to SFGATE that they are currently unable to test for banned pesticides in pot products. 

The state has known since 2018 that some labs are falsifying pesticide tests. The state has revoked two labs’ licenses for failing to accurately conduct pesticide tests, and fined three others for doing the same. And in 2022, Nicole Elliott, the director of the DCC, told the Cannabis Business Times that “unscrupulous labs” were “intentionally undermining the regulatory space, scamming consumers and threatening public health.”

In an effort to better police these private labs, the state spent $11 million on building a laboratory at UC San Diego that could serve as the state’s “reference laboratory by conducting testing of cannabis goods as requested” by the state, according to a copy of the lab contract obtained by SFGATE in a public records request. However, the lab has failed to meet any of its contractual deadlines to provide cannabis testing for the DCC, according to quarterly reports obtained by SFGATE in a records request. Kellie Woodhouse, a spokesperson for UCSD, attributed the lab delays to COVID-19.

David Hafner, a DCC spokesperson, said in an email the agency “will not comment on contract performance” with UCSD, but said the agency is “in regular communication with the lab regarding improvements to their processes.”

Without a fully functioning lab at UCSD, the DCC is unable to test some pot products for pesticide contamination, according to Hafner. He said the department will be able to test all products for pesticides “shortly,” without clarifying when. He also declined to say which products they currently cannot test, claiming that “this information might assist operators seeking to circumvent regulatory requirements.”

Hafner said the DCC is still working with the UCSD lab to validate a pesticide testing method to “confirm, with scientific rigor, that it is sufficient to protect the public and to produce evidence that can withstand legal scrutiny in potential disciplinary proceedings.” Even if the agency can’t test for pesticides in a product, he said, they will still test for other contaminants.

‘Nobody’s monitoring the industry’

California has the largest pot market in the world. Last year, the state recorded over $5 billion in legal weed sales, encompassing millions of products. Yet, despite the market’s massive size, the DCC has rarely warned the public about contaminated pot.

California regulators announced just four voluntary recalls in 2023, one for pesticide contamination. The DCC has never issued a single mandatory recall for pesticide contamination. In contrast, the Washington State Liquor and Cannabis Board, which polices a cannabis market less than a third the size of California’s, recalled 65 products last year for pesticide contamination.

Lezli Engelking, the CEO of FOCUS, a nonprofit organization focused on developing cannabis regulations, said the lack of product recalls in California should be deeply concerning to the public.

“It sounds like nobody’s monitoring the industry,” Engelking told SFGATE. “We’re doing all this testing but nobody is actually looking to see if there’s problems. Arizona probably has four recalls a month. A state the size of California, it just statistically does not make sense [to have that few recalls].”

A spokesperson told SFGATE the agency has issued 304 embargoes since 2021, more than a third of them in January 2024. But it’s unclear why the state has secretly embargoed hundreds of pot products, yet only warned the public about a handful of recalls. The agency declined a records request for embargo notices, claiming they’re all part of ongoing investigations.

Not all pot regulators consider embargoes secret: The Oklahoma Medical Marijuana Authority publishes embargoes on its website. Engelking said it was “absolutely unacceptable” that the DCC refuses to release embargo information, which she told SFGATE she believes protects the reputation of private companies at the expense of public health.

Hafner, the DCC spokesperson, defended the department’s recall work by pointing out that private California companies have issued four voluntary recalls since November of 2023.

“DCC will continue to use its full range of enforcement tools across the supply chain in an ongoing effort to facilitate a well-regulated legal market that protects consumer health and safety,” Hafner said in an email.

‘People will take advantage’

Cannabis oversight does appear to be increasing in California. The DCC recently increased pressure on the state’s cannabis labs, including by rolling out new testing regulations intended to help catch unscrupulous lab operators. Hafner said the agency has already cited several labs for not following the new testing method. Jason Cooley, the director of Sqrd Lab, a DCC-licensed lab in Los Angeles, told SFGATE he feels like the agency has been paying closer attention to private testing operations lately.

“I feel like there’s greater awareness in the industry that they’re watching, which is good,” Cooley said. However, he added that SFGATE’s investigation has shown clear failures in how the agency conducts embargoes. 

“They should have reached out to those places where the product was, individually, and made sure that each place had confirmed that they were aware of the embargo,” Cooley said.

Swider, the lab operator from San Diego, said the DCC pays for a system that is intended to track legal cannabis products throughout the supply chain using batch identification numbers. He believes the agency should leverage that system, and make it impossible for a store or distributor to even ring up a product that’s under embargo. 

Raber, the cannabis researcher from Los Angeles, told SFGATE the state needs to increase enforcement, so that pot companies and cannabis labs know they will be punished if they violate the rules.

“The lack of enforcement has allowed everything to go off the rails,” Raber said. “I think that shows you that if you’re not enforcing things, people will take advantage of them.”