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The state’s cannabis testing requirements for the fungus aspergillus have been suspended after the Oregon Court of Appeals granted a motion today to stay the rules pending a legal challenge filed by the cannabis industry.
The Aug. 25 ruling comes just one month after the state’s largest marijuana trade association, the Cannabis Industry Alliance of Oregon, alongside three small weed companies, asked the Court of Appeals to halt the ban on aspergillus, arguing it could destroy cannabis businesses.
“The court has considered the irreparable harm to petitioners in the absence of a stay, petitioners’ likelihood of success on the merits, and the risk of harm to the public is a stay is granted and, in light of those considerations, concludes that a stay of enforcement of the Aspergillus Testing Rule is appropriate in this case,” the Court of Appeals wrote in its decision.
Today’s ruling means the case will move forward and the aspergillus rules cannot be enforced until the case is settled.
Kevin Jacoby, the lawyer representing the cannabis businesses, tells WW it’s likely the state will launch new rulemaking to set similar requirements that aren’t subject to today’s stay.
“Oftentimes they see the writing on the wall and will rather quickly move to rulemaking that will change the rule,” Jacoby says. “Once they change the rule, that would moot the judicial review proceeding regarding the validity of the rule. But new rulemaking would likely take six to eight months.”
That, Jacoby says, means the upcoming outdoor harvest is “not under threat.”
A spokesman for the Oregon Health Authority says the agency is “reviewing the decision and will be discussing next steps in the coming days.” The OHA 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 by those tests, the new rule stipulated, the cannabis would be subject to recall.
The testing rule sent shock waves through Oregon’s struggling weed industry. The Cannabis Industry Alliance of Oregon held Zoom meetings this spring where representatives of hundreds of cannabis businesses discussed their displeasure with the new rules. The industry argues that cannabis containing aspergillus has not been linked to any illnesses or deaths in Oregon and testing for it could further harm an industry reeling from oversupply and low prices.
State regulators argue 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 Oregon Liquor and Cannabis Commission has already recalled products containing aspergillus from two farms, including Nectar, one of the state’s largest cannabis companies.