Michigan Officials Question High THC Weed Lab Results

Questions arise after Michigan regulators filed formal complaints against one of the state’s top cannabis testing laboratories last month. Cannabis that tests over 28% THC, and at times over 40%, is subject for an automatic audit, and regulators say the lab results aren’t adding up.

Formal complaints were filed by the Michigan Cannabis Regulatory Agency (CRA) in May against Viridis Laboratories, one of the leading lab testing companies in the state, but the lab is in turn firing back with its own countersuit. The CRA noted discrepancies in Viridis Laboratories lab results since December 2020, according to formal complaints the CRA filed on May 19.

Often consumers question the THC content found in lab results, however THC level alone is not a reliable indicator of potency in all cases. Conversely, there is enormous pressure to drive up THC levels across the board as it is one of the biggest drivers of cannabis sales.

“Potency inflation is an ongoing, longstanding, widely known issue across cannabis in the U.S. right now in legal markets … ” Lev Spivak-Birndorf, founder and chief science officer for Ann Arbor-based PSI Labs, told MLive. “I call it the cycle of potency inflation: people want high potency, so then stores are under pressure to try and deliver that … and that drives growers to seek labs that give the highest results, and thus, we have this rampant lab shopping that we have going on.”

Per CRA policy, agents will audit results for any flower that tests over 28% THC. And according to the complaints, Viridis samples hit this range 8.9% of the time, which is reportedly higher than most labs across the state.

Viridis was also subject to the largest cannabis recall in the state’s history. The MRA recalled an estimated 64,000 pounds of cannabis valued at almost $230 million on Nov. 17, 2021, based on court filings. However, later, Michigan Court of Claims Judge Christopher M. Murray lifted the recall for a major fraction of the cannabis that was recalled.

But Viridis filed its own formal complaint against the CRA in the state’s administrative court, while litigation is ongoing. The Michigan Chamber of Commerce backed up Viridis by filing an amicus brief in support of Viridis that said the CRA recall “unconstitutionally exceeds the scope of the agency’s legislatively approved mandate.”

Viridis officials say the claims are “meritless” and that they’re targeted because the CRA wants a more even playing field with the limited number of testing laboratories.

“These CRA allegations against Viridis are from last August and continue to be baseless, meritless and totally detached from science, facts and data,” Viridis CEO Greg Michaud said.

“We intend to defend our business against these false claims during the court process and show the vindictive and retaliatory nature of the CRA’s actions which are clearly designed to cause maximum disruption and damage.

“Court-ordered proficiency test results that Viridis is in possession of, which the CRA had been withholding, will directly contradict these findings, and we’re confident the truth will prevail when all facts come to light. We hope these legal proceedings will pave the way for more transparency, accountability, and reforms at the CRA. Our hope is that the CRA can one day fulfill its true mission of promoting patient and product safety instead of unfairly targeting Michigan businesses trying to grow, compete and create jobs.”

MLive pointed out one instance when a purported 40% THC sample was challenged. A dispensary was displaying flower with over 50% total cannabinoids and 40.3% THC. The Spott, a licensed safety compliance lab in Kalamazoo, ran its own test and reached a very different outcome. According to the Spott, the flower contained about 26.4% THC, compared to the 40.3% that the label claims.

Both cases of litigation are ongoing.

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Michigan Judge Releases Some Products Involved in Massive Recall

A Public Health and Safety Bulletin published on November 17 announced that any products tested by either Viridis Laboratories, LLC or Viridis North, LLC, between August 10, 2021, and November 16, 2021, would be recalled while the Marijuana Regulatory Agency (MRA) investigated. Now, new developments are being made involving the massive cannabis product recall.

Last week, Michigan Court of Claims Judge Christopher M. Murray listened to six hours of testimonies, and on December 3, he ruled a decision that 1.) denies Viridis Laboratories (located in Lansing) a preliminary injunction and 2.) granted a preliminary injunction for Viridis North (located in Bay City). The two labs share ownership but are “separate limited liability companies,” according to the Detroit Free Press.

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Michigan Releases Cannabis Products

In Murray’s decision, he wrote that although the MRA’s goal is to protect the public, but that there is no evidence that products tied to Viridis North should be targeted. “Public safety concerns are one of the main purposes and duties of the MRA [Marijuana Regulatory Agency], and undoubtedly it believes the recall of both Viridis and Viridis North was necessary to protect the public,” said Murray in a written Court of Claims document

The statement continued, “As stated before, the Court defers to the agency with respect to its findings and conclusions as to the re-tested Viridis product. But when there is no evidence that Viridis North’s testing also fit into that category, the safety concerns are reduced. Also consider the time-lapse between the MRA’s receipt of the re-testing of the ten samples and the issuance of the recall-a matter of roughly two weeks. Again, this factor weighs roughly equally regarding injunctive relief, with perhaps a slight tilt to granting limited relief.”

Immediately following this ruling, the MRA released an update bulletin stating that administrative holds on all recall products would be lifted for Viridis North, LLC. “This includes any products that have been subsequently retested, regardless of whether those retesting results were passing or failing,” the MRA wrote.

One week after the recall was first issued in November, Viridis Laboratories and Viridis North filed a lawsuit against the MRA, claiming that there is no risk to the public to justify a recall. 

“This case illustrates the extraordinary dangers created when a state administrative agency is allowed to regulate from the shadows without proper oversight by a neutral, detached decision maker and, worst of all, motivated at least in part by what appears to be the whims and political objectives of its director and employees,” the lawsuit states

It also stated that Viridis believes it was targeted unfairly, claiming that the MRA questioned Viridis’ testing results by using competitors to double check the results. Viridis currently tests 60 to 70 percent of all cannabis products in the state of Michigan (valued at approximately $229 million).

Viridis’s attorney provided a statement to the Detroit Free Press shortly after the bulletin was posted, sharing that they were pleased with Murray’s recent ruling, which frees up about half of the products affected by the recall. “While we maintain that the entire recall was completely without merit, we applaud the court for at least reversing the MRA’s faulty decision to recall products tested at Viridis Bay City,” said Viridis’ attorney Kevin Blair.

Similarly, the Michigan Chamber of Commerce posted an amicus brief on November 30 questioning the initial recall decision. “As set forth in the attached proposed amicus curiae brief, the Michigan Chamber is deeply concerned about the impact of what appears to be an extreme and unconstitutional government overreach by the Michigan Marijuana Regulatory Agency in this case and the consequences of such excessive action for Michigan businesses within the industry.”

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