Overview
We noted that the Cannabis Control Commission’s (CCC’s) reporting requirements for possible pesticide violations differed from the requirements of the Massachusetts Department of Agricultural Resources (MDAR), which has exclusive jurisdiction over the use of pesticides in Massachusetts, during the audit period.
A memorandum of understanding, dated September 1, 2018, between CCC and MDAR affirms MDAR’s exclusive jurisdiction over pesticide use in Massachusetts, including pesticide use related to the production of marijuana. The memorandum states that CCC “shall notify MDAR if it discovers a potential pesticide violation or actual violation during an inspection or investigation of a Marijuana Establishment or thereafter.” MDAR officials stated the following in an email to us on September 29, 2022:
The Massachusetts Department of Agricultural Resources (“MDAR”) has exclusive jurisdiction over pesticides pursuant to [Chapter 132B of the Massachusetts General Laws] and also acts as the state lead agency under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) as designated by the United States Environmental Protection Agency. MDAR’s jurisdiction over pesticides as it relates to marijuana was further confirmed in Section 26 of Chapter 55 of the Acts of 2017.
MDAR officials told us that they have consistently maintained this position since marijuana cultivation began in Massachusetts, first under the state Department of Public Health for medical marijuana, and then under CCC when it assumed responsibility for all marijuana-related activities in the state in 2018.
On September 26 and October 16, 2018, MDAR issued advisories to all Massachusetts marijuana cultivators affirming its exclusive jurisdiction, in conjunction with the federal Environmental Protection Agency, over pesticide use and its prohibition of the use of registered pesticides on marijuana.
During the audit period, CCC’s “Protocol for Sampling and Analysis of Finished Marijuana Products and Marijuana-Infused Products for Massachusetts Registered Medical Marijuana Dispensaries,” effective December 2017, allowed finished marijuana material to be dispensed to patients or used to make other medical products if no pesticide was detected above the limit of detection.6 This was an adaptation of the state Department of Public Health’s testing protocols for medical marijuana. CCC has set the limit of detection for pesticides at 10 parts per billion.
During our review of marijuana establishments’ (MEs’) compliance with pesticide test reporting requirements, we found four instances where marijuana materials with a test result of “below quantitative level” (BQL)7 were classified as a “pass” in Metrc. A classification of “pass” in Metrc allows finished marijuana products made from the marijuana material to be sold in MEs. The four BQL test results we found in our audit test sample had reported concentration levels of 4.4 parts per billion.
After our review, we met with CCC to determine whether marijuana materials with BQL test results were allowed to continue into final production and sold to consumers without any notification from the MEs to CCC, or without CCC notification to MDAR, of a possible pesticide violation. CCC officials told us that they had co-jurisdiction over the use of pesticides in marijuana production and had determined that marijuana materials with BQL test results would be allowed to continue to final production and sale because BQL test results are not reliable indicators of possible pesticide use. They further stated that CCC was not required to report BQL test results to MDAR but noted that when CCC formally adopted the state Department of Public Health’s testing protocols in March 2021, it added the requirement that MEs and independent testing laboratories report BQL test results to CCC. CCC later stated in a memorandum to us, dated September 1, 2022, that it was “within the Commission’s authority to refer a case to MDAR for purposes of their investigation and enforcement of [the Pesticide Control Act],” but that it was not required to do so.
We asked MDAR officials about the jurisdictional and reporting issues we discussed with CCC. MDAR officials told us that, while CCC sets certain testing limits for its own reporting purposes,
It is MDAR’s understanding that CCC inspectors look for pesticides during their inspections with the facilities and report this information to MDAR. It is also MDAR’s understanding that any lab result that indicates anything other than a “ND” or non-detect for pesticides, is reported to MDAR for further investigation and determination as to whether any violation of law has occurred.
A reported concentration level of 4.4 parts per billion, as noted in the four test samples we observed, exceeds a test result of Not Detected and would meet the reporting threshold established in the September 1, 2018 memorandum of understanding between CCC and MDAR.
CCC’s “Protocol for Sampling and Analysis of Finished Medical Marijuana Products and Marijuana‑Infused Products for Massachusetts Registered Medical Marijuana Dispensaries” and CCC’s current operating practice do not require its licensees or CCC to report BQL test results to MDAR.
CCC should work with MDAR to clarify their jurisdictional and test result reporting differences, and amend their memorandum of understanding accordingly, to ensure that CCC and MDAR administer the Pesticide Control Act effectively and consistently throughout the Commonwealth.
Auditee’s Response
The Commission acknowledges and recognizes that MDAR enjoys exclusive jurisdiction over the use of pesticides. MDAR has been a vital partner to the Commission, particularly during the audit period while the Commission worked on reconciling requirements between the then new adult‑use and existing medical-use markets. The Commission remains appreciative of the continued collaboration with MDAR to protect the marijuana supply chain. . . .
The Commission’s collaborative relationship with MDAR is reflected in a September 27, 2018 Memorandum of Understanding entered into by both agencies. As set forth in that Memorandum of Understanding, the Federal Insecticide, Fungicide, and Rodenticide Act . . . assigns to MDAR primary enforcement responsibility for pesticide-use violations within the Commonwealth. In addition, the Massachusetts Pesticide Control Act . . . grants MDAR the authority to regulate the use of pesticides in general, and [Chapter 55 of the Acts of 2017] grants MDAR regulatory authority over pesticide use relative to marijuana in particular. . . . At the same time, MDAR recognizes that the Commission is authorized to administer the Adult Use of Marijuana Program pursuant to . . . Chapter 55 of the Acts of 2017. . . . MDAR and the Commission agree that the implementation of their respective statutory and regulatory responsibilities governing inspections, investigations, and enforcement necessitate interagency cooperation. . . .
MDAR regulates pesticide use and application while the Commission directs which pesticides to test for in the regulated cannabis market. The Commission requires Licensees to test for pesticides, along with heavy metals and other contaminants. The Commission refers positive tests for pesticides to MDAR so they may exercise their authority. As of 2023, the Commission reports all positive pesticide tests, including those below quantification level (BQL), to MDAR.
We acknowledge that, during the audit period, the Commission’s testing protocols did not specifically state that the Commission had to report any (i.e., BQL) pesticide detection to MDAR. To the extent that MDAR may have raised concerns with the Commission regarding the scope of its testing protocol or reporting requirements, the Commission took steps to address these concerns. That said, the Commission continues to improve these controls, and the current testing protocol now requires all evidence of pesticides be reported to MDAR.
The audit team asked how a pesticide test result of 10 parts per billion is permissible given MDAR’s “zero tolerance” for any evidence of pesticides, reflecting [federal Environmental Protection Agency, or EPA] policies. The EPA has not approved any pesticides for use with cannabis, because cannabis remains federally illegal. Because cannabis is legally regulated in the Commonwealth, however, the Commission must set testing standards. From its inception, the Commission has referred potential violations of permissible pesticide use to MDAR for purposes of their investigation and enforcement of [Chapter 132B of the Massachusetts General Laws].
In 2018, the Commission adopted the [state Department of Public Health’s, or DPH’s] existing testing protocols until the Commission issued its own updated protocols in 2021. The DPH’s protocols allowed for a product to “pass” testing if pesticides were detected at or below 10 parts per billion (ppb). Furthermore, in allowing BQL testing, the Commission accounted for the testing capabilities and standards for the [independent testing laboratories], which cannot test to a perfect “zero,” a challenge shared by other states. This protocol and our regulations, also respect that, by law, all independent testing laboratories must be accredited by an external third party to the most current International Organization for Standardization (ISO) 17025 standard. This accreditation requires that their processes and methods be validated external from the Commission, which establishes reliable and consistent quantitative levels of detection above absolute zero. In sum, tests to absolute zero are not reliable.
Despite that lack of reliability, a test indicating detection below 10 [parts per billion] may still indicate the need for further inquiry or investigation by MDAR, given its statutory obligations. Consequently, the Commission reports that finding to MDAR, so that MDAR may exercise its authority. The Commission entered [a memorandum of understanding] committing to this collaboration. The Commission exercises its regulatory authorities to support MDAR in performing its regulatory functions.
Auditor’s Reply
Based on its response, CCC has taken measures to address our concerns in this area.
| Date published: | September 26, 2023 |
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