September 20, 2023

Speaking to Both Sides of Oregon’s Cannabis-Aspergillus Testing Debate

“A lot of my clients were eager to figure out how this might impact them,” says Kevin Jacoby.

Jacoby is a lawyer representing the CIAO in the legal challenge against the OHA. He says, prior to the original March 1 deadline, many of his clients were experimenting with remediation technologies to see if they could get their crops to pass the incoming zero-Aspergillus limit. There were mixed results.

“Certain remediation techniques just didn’t work. They [the growers] would spend all this money to run it, for example, through an ozonator, and then get retested and it would still fail. The only [technique] that one of my clients was able to get a pass afterwards was irradiation. But that process negatively affected the color and the smell of the product – and it reduced the THC content by 25%.”

“That particular client was adamant that he was going to disclose that this product was irradiated,” Jacoby adds, “which means he couldn’t sell it – or, if he could sell it, it [would be at] 60% discount.”

This discounted, diminished cannabis may have been sellable under the incoming Aspergillus testing rules, but, according to Jacoby, at least 20% of his clients’ crops still weren’t.

“We were seeing a failure rate of about 20%, and that was just on product that was harvested primarily indoors – greenhouse crops – in Oregon.”

“That does not bode well for outdoor producers.”

Given that most of the state’s cannabis growers cultivate outside in Oregon’s precipitous climate, Jacoby’s clients were concerned that their true Aspergillus failure rate, come the harvest in September/October, would be much greater.

“At that point, they [the growers] could be looking at potentially their entire harvest being failed for Aspergillus,” says Jacoby.

Fearing impending losses, the CIAO filed its lawsuit against the state regulator in July, successfully stalling the requirement by August.

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