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The state’s largest cannabis trade association and three cannabis businesses asked the Oregon Court of Appeals on Friday morning to block the state’s new ban on cannabis containing a common fungus called aspergillus.
The industry considers the new testing rule an existential threat. “Unless the court acts to stay enforcement of [the rule, petitioners] will suffer severe and irreparable harm long before the rule can be subjected to full judicial review,” the filing states. “These petitioners anticipate that unless enforcement is stayed pending judicial review, [the rule] will force financial losses that will be immeasurable and will threaten permanent closure of their respective businesses.”
The Oregon Health Authority began requiring March 1 that cannabis farmers and producers test their products for aspergillus, a fungus that thrives around organic matter, including that at cannabis farms. If aspergillus were detected in those tests, the new rule stipulated, the cannabis would be subject to a recall.
The rule sent shock waves through Oregon’s cannabis industry. The Cannabis Industry Alliance of Oregon held Zoom meetings this spring where representatives of hundreds of cannabis businesses discussed their displeasure. The industry argues that cannabis containing aspergillus has not been linked to any illnesses or deaths in Oregon, and could further harm an industry reeling from oversupply and low prices.
State regulators reply that inhalation of aspergillus has been shown to be dangerous to people who are immunocompromised and that “adopting additional rules would increase public health and safety on cannabis items sold to consumers and puts Oregon on the same national standard as other states.” (The Oregon Health Authority acknowledges there’s no proof that cannabis containing aspergillus has sickened any Oregonians.)
The plaintiffs, which include Southern Oregon Family Farms, Cannassentials and Essential Farms, are requesting that the judge immediately halt the aspergillus rule until the plaintiffs and the state can duke out its validity.
The Oregon Liquor and Cannabis Commission has already recalled products for containing aspergillus from two farms, including Nectar, one of the state’s largest cannabis companies. The fail rate for cannabis flower containing aspergillus, according to the OLCC, was 8% as of late June. Across all products the aspergillus failure rate was 4.3%.
The industry’s court challenge comes just two months before the bulk of the state’s cannabis will be harvested.
Specialized machines can strip aspergillus from cannabis, but the process is expensive and, according to Friday’s filing, “negatively affects the look, smell and flavor of the product.”
The Oregon Health Authority has two weeks to respond to the industry’s motion. If the Court of Appeals grants an emergency stay, the aspergillus rule will be unenforceable until the two parties resolve the issue in court.
The OHA declined to comment, citing pending litigation.