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Put to the Test: SB1494 in Depth

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(Testing Bill Clears the Senate, But Can It Cross the Finish Line?)

BY MIKEL WEISSER

Arizona’s 8yrs quest to add testing to the state’s medical marijuana program got one step closer to reality last week when SB1494, received a DPA, or “Do Pass as Amended” recommendation and sailed out of the Senate on a 30-0 vote, completing the first half of its legislative journey of making this long-awaited dream a reality. The bill, SB14994, sponsored by Sen David Gowan (R-LD14) proved to be the best of breed in a four-bill dogpile of testing legislation that scrambled for traction this contentious legislative session.

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When it lands in the House this week, the heavily amended SB1494 may still face more amendments and more battles. For such a straightforward idea, that medications sold to AZ patients should be regulated for health, safety and quality assurance, the effort to look out for patient safety has repeatedly faced roadblocks from both conservative prohibition-loving politicians loathe to aid AMMA in any way, even to the point of ignoring public health concerns. AND, from the AZ cannabis industry itself, fearful of allowing government to exert any more control on their operations and the inevitable increase in production costs that additional regulations could add. 2019 may be the year these challenges are conquered, but the conflict dates back to the very origins of the program.

Not Ready for Primetime

Prop 203, aka the Arizona Medical Marijuana Act (AMMA) was crafted in 2009 by MPP, aka the Marijuana Policy Project, when America’s cannabis testing industry was virtually non-existent and consciously not included in the citizens’ initiative. On the evolution timeline of cannabis testing, Arizona fell into a dead zone: too early in process to have testing built into the program, but so late that the complexity of current state of the art in the industry makes the effort to catch up with the times almost insurmountable. In today’s medical marijuana industry, Arizona has become the only state out of 33 with no testing provisions.

In 2011, former DHS Director Will Humble had to choose between waiting for a testing industry to develop or launching the program without one.

Dr. Will Humble, the original designer of the DHS Medical Marijuana Program has lamented for years that it was not feasible in 2010 to build testing into the fledgling program.  “Given the state of technology at the time,” Humble explained in 2017, preparing for his speech at that year’s SWCC conference, “We couldn’t delay the program to wait for the testing technology or the testing companies of the time to catch up. The expertise wasn’t here, and we might not have ever had those companies in Arizona for all we knew.” At that point, serious prohibitionists like then-Governor Jan Brewer, State Attorney General Tom Horne and Maricopa County prosecutor Bill Montgomery were leading a concerted effort of lawsuits and threats designed to prevent an Arizona medical marijuana industry from ever getting started. So, rather than delaying the program further and give more time for its opponents to sharpen their attacks, Humble launched the program without testing, with the intention of including it in future updates.

Instead, when Humble presented newly-seated Gov. Doug Ducey with his proposed reforms in 2015, Ducey chose to freeze reviews of all agency regulations. Humble left DHS shortly afterward and his replacement, Dr Kara Christ, has shown little appetite for challenging Ducey over MMJ. The political focus of the industry remained on defense from an onslaught of legislative attacks for the next five years. Due to Prop105 protections, the program could not be dismantled without 3/4s vote, despite numerous GOP attempts. Though Democrats didn’t have the political power to pass any positive provisions of their own, they could block attempts to attack the program. Keeping the medical program alive was more important than fine tuning it, or publicly acknowledging flaws in the system. An uneasy stalemate ensued.

Multiple Choice

Though SB1494 has enjoying remarkable success for a cannabis-related bill, its provisions have been circulating around the Capitol for years. 2019 is, in fact, the 3rd year in a row a cannabis testing bill has attempted to work its way through the legislative process. In 2017, testing was a key to legitimacy in Sen Sonny Borrelli’s breakthrough hemp bill. Modern industrial hemp is simply another strain of the cannabis sativa plant, much like medical marijuana strains, except that it’s been bred to have little to zero THC (the active ingredient in marijuana.) Hemp plants would need to be tested for THC potency and thus testing made its first inroads. Though vetoed after the session ended, thanks to Borrelli’s failed hemp bill, cannabis testing had officially entered the political discussion.

In 2018, Borrelli’s second attempt with hemp legislation sailed through the legislature and his medical marijuana testing bill, SB1420, made it all the way to the final vote. While much of Arizona championed the concept of testing in public, behind the scenes loyalties and principles were tested to the breaking point. Drug warrior legislators like David and Eddie Farnsworth feared the testing bill would grant legitimacy to the AMMA, a program they still wanted shuttered. Democrats who had been the face of protecting MMJ were incensed by Borrelli’s end run around them and defected from backing ideas they had championed for years. MITA-AZ, AZ-NORML and the ADA (Arizona Dispensary Association) squabbled both in private and in public over the shape of the regulations. In the end, the feuding kept the bill from becoming law even though it received majority votes in both chambers of the legislature. (Amendments to citizens’ initiatives require 3/4s votes to pass, instead of a simple majority.)

AZ CANNABIS image of Borrelli and Gowan
Sens David Gowan and Sonny Borrelli look on as SB1494 passes unanimously in committee.

Despite the bitter battles testing faced in 2018, the idea of testing remained incredibly potent. When the 2019 session opened, instead of uniting to back a single testing bill, legislators from both ends of the political spectrum came up with five different versions of the concept. Conservatives, like Borrelli and Gowan worked together to prepare stripped down “clean” testing bills (SB 1137 & SB1494). LD9 Democrat Rep Randy Friese, took up the remnants of Borrelli’s 2018 testing bill and fashioned a sweeping omnibus bill centered around testing (HB2537), which could not get a hearing. Liberals, like LD26’s Sen Juan Mendez and Rep Isela Blanc each presented their own bills, though Blanc’s late-arriving bill was ultimately blocked from being filed.

According to prevailing State Capitol calculus, Sen Gowan’s version of testing was the odds-on favorite from the moment it was filed because it dutifully checked all the right boxes. A popular Republican sponsor with years of leadership experience (while a Representative, Gowan served as Speaker of the House), a tried and true law-n-order approach, an in-demand idea on its third time around, and, most significantly, a piece of legislation designed from the ground up by those who actually understood the issue—the testers themselves. Unlike the others bills filed this session, Gowan’s bill was crafted by his former chief of staff, Brett Mechum and leaders in AZ’s testing industry.  Level One Labs’ George Griffeth and C4’s Ryan Treacy, who worked with Mechum on the language knew firsthand about the pitfalls other states’ testing programs had stumbled over and the seriously high stakes involved in adding testing to an existing medical marijuana program.

A Testy Proposition

Across the country as America’s cannabis markets came up from the underground and sought legitimacy, the serious health effects possible from shoddy business practices soon came to light. While cannabis itself is unlikely to be the cause of any serious health issue, contaminants like pesticide residue or microbial contaminants such as mold or e. coli have wreaked havoc on vulnerable patient communities. Concentrated cannabis products can concentrate these toxins even further.

In states like Oregon, Colorado and California patient health epidemics due to mold and/or pesticide contaminated cannabis made national news. In the Bay Area around San Francisco in the winter of 2016, five HIV patients died of fungal pneumonia from attempting to use moldy marijuana. Even sunny AZ was not safe from PM (powdery mildew) infestation. In late 2017, popular Phoenix-area dispensary Encanto Green drew front page headlines when owner Bill Brothers scoffed away concerns after his company was caught marketing mold-covered cannabis.

Errl Cup founders, Jim Morrison and Jay Nehri look on while legislators and lobbyists debate the fate of the cannabis patient community.

According to KB Labs’ Boaz Leher, during a recent stakeholder meeting, though many dispensary operations test for potency, Leher speculates fewer than 1 in 10 test for safety concerns. In the wake of a pervasive mistrust among the patient community, patients themselves have taken up the call for accountability. When his sister was made sicker from the medical marijuana she was using to battle for her life, Phoenix-area realtor, Jim Morrison, decided he had had enough and began secretly testing sample products from dispensaries and caregivers. His research led to partnering with logistics guru Jay Nehri and launching his Errl Cup events in 2016. Part competition, part public service announcement and a whole lot of medicating patients, the Errl Cup’s annual January and July smoke-outs each attract dozens of competitors, hundreds of vendors and as many as eight thousand patients.

Fun and games aside, each year the Errl Cup posts the results of hundreds of samples and generally finds most commercial growers fail the microbial tests. “We have had as many of 80% of entries test positive for mold and mildew. Some of the biggest dispensary growers in the state have had their samples disqualified. They aren’t going to police themselves. They’ve had years to show otherwise,” Morrison laments bitterly. “We’ve got to have these laws. People are dying.”

Meanwhile, as testing programs became mandated in emerging legal markets, initial regulations often stifled, and is some cases even crippled, their state industries. On one hand, companies that had been doing limited testing on their own products, were suddenly saddled with extensive batteries of additional mandated testing, doubling and even tripling their testing costs. On the other, state regulatory boards often hobbled industry efforts to adopt new rules. Oregon had to replace its entire regulatory board, Nevada dispensaries ran out of weed at one point due to testing lag-times, and Michigan had to suspend its new testing regulations just weeks after implementation when it turned out neither the growers nor the state testing industry were actually ready to live up to the new requirements. In Arizona, testers faced an even more serious problem: under current law, cannabis testing is illegal.

While the basic concept of testing medical products for health and potency may seem like a no-brainer to most anyone considering medical marijuana, under the AMMA, any company attempting to transport and analyze cannabis is risking multiple felony arrests.  According to the AMMA, only dispensary agents and patients are allowed to possess marijuana. Middlemen like testers have zero protections and are subject to arrest. Pioneering companies like C4 or Delta Verde Labs invested millions over the years with no guarantee they wouldn’t have their doors kicked in by law enforcement at any given moment. Newer companies like Level One had been slow to start up in AZ because their staff can only safely possess the cannabis if they have patient cards. Not only would any successful bill have to protect the very people tasked with protecting Arizona’s vulnerable patients more importantly, it had to work.

Making the Grade

So, after years of failed attempts to create a functional testing program for the state, SB1494 appears to have had the time to work out most of the important details. According to its factsheet, the bill requires all medical cannabis products produced in AZ be tested starting June of 2020. DHS will be required to promulgate procedures, standards and methodologies for the handling, transportation and testing of cannabis and cannabis products.  In addition to creating legal protections, licensing and regulations for the testing companies, the program will include a reference library to keep track of the latest developments in the field.

Cannabis will be tested for “unsafe levels of microbial contamination, pesticides, herbicides, fungicides, growth regulators, residual solvents … and … potency.” In a nod to Sen Borrelli’s years-long efforts to prohibit hazardous chemicals from being used in cannabis cultivation, the bill specifically prohibits chemicals deemed unsafe by the Federal Insecticide, Fungicide and Rodenticide Act. Cannabis that fails to meet these standards may be remediated, if possible, or will be destroyed.  Test results will be made public so patients can research cultivators and strains before shopping. The bill even creates an 11-member council to administrate the program.

Even the ever-skeptical Jim Morrison gives this one a thumbs up. “It seems to have all the language we’ve been fighting for and none of the distractions some of the other bills have, “Morrison laughs. “Now, if we can get ‘em to pass it.” Now indeed.

As SB1494 readies to do battle in the State House, every part of the bill is about to be scrutinized once more. This week the bill is expected to go through a whole new set of stakeholder meetings and get assigned to a committee. So far, the ADA’s new lobbyist, Pele Fischer has been pumping the brakes on the legislative process to give her organization time to analyze each provision. If SB1494 succeeds in passing out of committee, it still has to garner 45+ votes from the full House to gain the 3/4s votes necessary to amend AMMA. Coming off a unanimous vote on the Senate floor last Thursday is a really good sign, however. So is the fact that, so far, Democrats, Republicans, the ADA, AZ-NORML and MITA-AZ have worked together and are still hoping to carry the bill across the finish line.

So far, so good. Fingers crossed.

mikel weisser–In addition to serving as the state director of AZ-NORML, Mikel Weisser is the editor and head staff writer for the Arizona Cannabis Monthly.

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