The Massachusetts Cannabis Control Commission is considering changes to improve laboratory integrity and prevent fraud. But stakeholders say the agency is missing the big picture.
There has been a lot of noise about laboratory impropriety in Massachusetts cannabis over the past couple of months.
The cacophony includes a listening session held by the Cannabis Control Commission last month, in which members heard testimonies from Independent Testing Labs (ITLs) and other segments of the industry impacted by problems facing this license class. Addressing the agency directly, stakeholders impugned various elements of the complex topic, with many circling common themes like standardizing methods and releasing testing data to the public.
Last week, amid increasing pressure to act on these matters, CCC department heads made a proposal at the body’s monthly meeting which they argued, if passed, could “elevate the integrity of the testing process and ensure compliance.” But operators of several licensed labs in the state disagreed. One was so distraught that they sent a letter to commissioners. It read in part:
“While I was happy to finally see Lab Shopping on the agenda to be addressed in a public meeting, I was left disheartened when I heard the discussion, which made it very clear that the Commission and their staff do not even understand what the problem is, how this has festered to deteriorate the quality and health of the Massachusetts regulatory market. If the Commission does not understand the nature of the problem, then any efforts to resolve it will be misguided, a waste of Commission and tax payer resources.”
The years-long fight against lab fraud
None of these are new concerns. While CCC members have been slow to address complaints around testing in Mass, as part of the body’s “regulatory review period to address necessary changes and updates to the rules and regulations governing the cannabis industry,” its Cannabis Advisory Board (CAB) Research Subcommittee began “evaluating the area of cannabis lab testing and product labeling” as early as October 2022. In “discussing reports of inconsistencies and potential safety issues in how cannabis and cannabis product samples are tested, how test results and contaminants are reported, and how operators are presenting testing and potency data to patients and consumers on product labels,” they later approved a number of cannabis lab testing recommendations in June 2023. To date, none have been fully implemented.
Last month, the Research Subcommittee invited MCR Labs VP of Marketing and Technology Yasha Kahn to speak at their meeting. Along with other researchers, Kahn helped compile a database of nationwide lab test results, which MCR describes as “a treasure trove of information that can reshape our understanding of cannabis products, the policies that govern them, and the quality control mechanisms in place.”
Kahn broke down how the problem proliferates: consumers walk into dispensaries looking for high-TAC products, then shop owners in turn tell cultivators that they can’t sell lower-potency products. Many of those growers then approach the lab they use and tell them that if they don’t give them better results, they will abandon them for a facility that will.
Kahn also spoke about troubles with contaminant screens, showing data from cultivators who went from failing a number of total yeast and mold tests with one lab, then passing unanimously when they switched to another provider. “There’s a reason why labs go out of their way to figure out ways to not detect mold, and to not fail their paying customers, their cultivators,” he said. “The reason they do this is money.
“Labs that have a failure rate that is three-to-eight times lower than the national average for total yeast and mold failures, they increase in market share year after year. The labs that have a failure rate around the national average, they decrease.”
The Cannabis Control Commission reacts
Following the hearing on Nov. 7, the CCC placed an item on its Nov. 14 agenda for members to discuss a “Laboratory Shopping Proposal.” Many who watch this corner of the cannabis world closely rejoiced, though with cautious skepticism, since they have seen few reform efforts in this lane in all their years of asking for specific changes.
Presenting with other top-level CCC officials, Laboratory and Testing Manager Geneive Hall noted the breadth of the agency’s coverage area—currently 1,233 active licensees and 13 ITLs—explaining, “We don’t just monitor compliance data, we monitor [research and development] data.” In other words, there’s a lot on the commission’s plate, especially with countless applicable and intersecting rules and codes.
On top of those challenges, Hall said things are further complicated by a system that is easy to manipulate. She clarified that companies can currently send samples of one product to multiple labs, then hand-select the best results—a heavy metals screen from Lab A, potency and terpene levels from Lab B, and so on. “Right now, one product can have multiple certificates of analysis (CoAs), then companies cherry pick.” Hall said the current testing protocols also allow for expiration dates to be pushed back, and make the clarity of information challenging when there are several product sets pertaining to the same batch: “When we see multiple samples submitted to the laboratory … it is hard for us to distinguish.”
To address the situation at hand, Hall proposed that the commission “adopt a policy position to require licensees to use one ITL for all required test panels.” Along with Enforcement Counsel Tim Gooden and Chief of Investigations and Enforcement Nomxolisi Khumalo, she also recommended “streamline verification and analysis,” in order to “optimize assessment of violations of Commission regulations” and “strengthen the capacity to prosecute violations and promote public health and safety.” Per their presentation: “Centralizing testing data in-house enhances our ability to identify violations, respond to public records requests from constituents, and make data accessible on the Commission’s Open Data platform.”
“We’re here because of our ongoing assessment and reevaluation of our protocols,” Hall said. Less credit was given to the external forces that have spoken out about this for years, though their presence was certainly felt. Hall continued, “We are here to ensure public health and safety… laboratory shopping is just one piece of the puzzle, but it’s a significant piece of the puzzle.”
Independent Testing Labs respond
Megan Dobro, the founder and CEO of SafeTiva Labs in Westfield, shared her takeaway from last week’s presentation: “The proposal is to remove the option of a la carte testing, which apparently, Massachusetts is the only state that allows. Currently, producers can break up their compliance across labs so the lab that does the cannabinoids testing can be different from the lab doing the microbial testing. It’s also the mechanism that allows producers to send the same products to multiple labs to shop for results, paying for only the single test. The proposed change would make it so there’s one [COA] per sample, and producers have to complete a full panel of required tests. They’ll still be able to do r&d testing.”
Dobro continued: “This move makes sense and I hope they push the proposal forward, but it’s a small step toward the goal of eliminating lab shopping. As long as there is wide variability across labs, there will be lab shopping. We need standardization, clearer regulations, and more oversight of the labs and the sampling process.”
Yasha Kahn had a similar reaction, as did his brother Michael Kahn, the CEO of MCR Labs who attended the CCC meeting last Thursday. Both said that the proposal made is welcome, but hardly a silver bullet. “It sounded like they were saying cultivators send samples to multiple labs,” Yasha said in a phone interview. “It happens so infrequently. Sometimes [cultivators and manufacturers] send samples to multiple labs, but then they find out which gives better results, and then they keep on sending samples to that lab.”
“The practice of lab shopping is not achieved through sending a batch to multiple labs and picking the most favorable results, as described in the CCC’s presentation,” Michael Kahn wrote in a follow-up email. “It is a laboratory selection process by the cultivator / manufacturer to work with the lab which will give the most favorable results. This is observed in the publicly available data.”
The Kahns said they don’t know what path the CCC is heading down with this latest development, but emphasized that changes aren’t needed on the record-keeping side to investigate and thwart lab fraud. The answers, they say, are readily available—including three years’ worth of potency numbers the commission recently made public. “If they properly analyze the data,” Yasha said, “it’s not that they’re not problems, but there are much bigger problems.”
Dobro of SafeTiva said, “It sounds like this proposed change would also make it easier for the CCC to analyze the data in [the state’s seed-to-sale tracking system] Metrc to find outlier labs and producers. With one CoA per sample, there is no more tracking of multiple partial CoAs. It also removes all of the zeros that labs enter when tests were required but not completed. But I sincerely hope the CCC will put in the effort to analyze historical data and make it all publicly available, even if it is a little messy. We can easily clean up the data to make meaningful conclusions about outliers.”
At last Thursday’s public meeting, CCC Chief Technology and Innovation Officer Paul Clark said, “There’s still a lot of work going on in the data analysis world [of the CCC]. We’re still building out a lot of the data analytics of where things are. There’s trends, and then there’s causation—why is a trend occurring? And we’re still working through a lot of that right now.”
Dr. Christopher Hudalla, the president and chief scientific officer of ProVerde Laboratories, said an analysis of data from the CCC already “shows that producers are actively exploring different labs to get higher potency results, with lower microbial failures.” He continued, “You can look at the data [obtained via Freedom Of Information Act requests] for dozens of producers to see the same behavior. Even with this data in hand, the commission continues to divert their attention to other ‘perceived’ issues, such that any efforts to solve these problems will be completely mis-directed. The house is on fire, and they want to hose down the barn.”
Calls for more communication
At the Nov. 7 CCC listening session on testing, Corey Aldoupolis, the lab director for ATOZ Laboratories in Hopkinton, read from a letter to the commission on behalf of 12 active ITLs: “The highest priority is establishing communication between the labs and the commission.” He added, “ITLs are uniquely positioned to support and educate the commission on issues that continue to impact the public. Unfortunately, many ITLs have experienced frustration with the adversarial relationship with the commission.”
Aldoupolis requested that the CCC schedule quarterly meetings with testing labs in order to increase meaningful dialogue as the agency weighs possible changes to its testing requirements.
Others have made similar requests. During his presentation to the CAB Research Subcommittee last month, Yasha Kahn suggested that the CCC’s testing team and leadership meet regularly with ITLs, that the agency “prioritize public health and consumer rights,” and also “make all cannabis compliance testing data public.”
Hudalla of ProVerde said he and others have sounded alarms for years, and seen no real response. As one example, he said, “In October of 2020, we sent an e-mail to the commission, expressing our concerns with the reliability of the PCR microbial methods that were being implemented, with an extremely high degree of false negatives. … We shared this collection of data with the CCC. My letter warned that we were already seeing lab shopping in effect, for which producers were seeking out these labs because it was becoming general knowledge that these methods could be used to pass moldy products.
“Rather than dealing with the lab shopping issues in their infancy, these issues now impact a significant portion of test results for the Massachusetts regulatory market, putting patients and consumers at risk.”
Since last week’s commission meeting and lab shopping proposal, members of the CCC have already visited two ITLs “for informational tours” and “to discuss the triumphs and challenges testing labs are currently facing in ensuring health and safety in Massachusetts’ regulated cannabis market.” It’s a hopeful sign, but according to the Kahns from MCR and their counterparts at other licensed facilities, the message from labs is still emphatically that they need more open lines of communication with the agency. Furthermore, they said the CCC needs to meet with all of the labs at the same time, so everyone emerges with the same understanding and interpretations of the regulations.
“Right now,” Yasha Kahn said, “We don’t have a working relationship.”
