The only private lab approved for testing medical cannabis-derived products in New Mexico has closed its doors, leaving producers no way to fully comply with standards put in place by the Department of Health last year.
A new lab is applying for state certification to test edible chocolates, tinctures and other products made from marijuana-extracted oils like butane hash oil. But until another lab is approved, some patient advocates want the state to help close the gap.
"My take on the subject of testing is one of the patients' standpoint," says New Mexico Cannabis Patient Alliance President Tim Scott. "If the producers do not take testing seriously and the [health department] does not, then people will get hurt…This is about health and wellness, and without testing this is all a crapshoot at best."
Since it's illegal for New Mexico's 23 licensed cannabis growers to send their samples across state lines to be checked at private labs in Colorado, state Sen. Gerald Ortiz y Pino, D-Albuquerque, wants to know why the Department of Health's Scientific Laboratory Division's state-of-the art facility in his hometown isn't being used until a new private vendor is approved.
The $86 million taxpayer-funded laboratory, which opened in Albuquerque in 2010, is already responsible for some 350,000 public health, environmental and drug tests every year. Because state law requires patients have safe access to cannabis, Ortiz y Pino tells SFR he thinks Gov. Susana Martinez should require the state lab to conduct the tests.
The governor's office refused to answer SFR's inquiry about temporarily using the lab and instead referred questions to the health department. There, spokesman Kenny Vigil said Medical Cannabis Program Manager Ken Groggel was unavailable for an interview. Vigil instead emailed SFR a statement acknowledging that there's no longer a state-approved lab to perform testing for medical cannabis. He asserts that "there is currently no lapse in testing" because the state does not mandate "how or where testing should occur."
Perhaps the double-talk is attributed to how the state walks a fine line between making rules that require testing and divesting itself of responsibility to verify tests are regularly taking place.
Even more testing is called for in a set of pending new rules, and Vigil writes that the department "is working to ensure there are adequate facilities for testing."
During an undercover investigation into the potency of marijuana edibles [Cover, June 4, 2014, "Rx Test"], SFR discovered documents that showed Groggel instructed producers to do testing with Page Analytical in order to comply with state rules.
"Utilization of Page Analytical for testing of cannabis and cannabis-derived products will satisfy the regulatory expectations of the department and the requirements agreed to in the Production Standards for Cannabis-Derived Products, effective January 1, 2014," Groggel wrote.
Page Analytical lab owner Jeremy Applen closed the facility two months ago. Until then, he performed tests to measure potency levels and look for microbiological contaminants like mold, fungus and E coli on cannabis products as outlined in the production standards.
Groggel even warned producers not to make labels with specific dose percentages "without appropriate testing documentation for support."
That's why Applen says the department's view that there is "no lapse in testing" under current rules "is not congruent with the guidance issued by Groggel last year."
After shuttering his lab on Dec. 19, Applen has been hired as a consultant by marijuana industry executives around the country. From his office in Albuquerque, Applen says he has lingering concerns about some producers in New Mexico "misrepresenting their products to registered patients."
Applen claims that most growers are honest and committed to patient safety, but others, he found, often use one-time pass reports for individual plant strains in perpetuity rather than testing each new harvest.
Current testing enforcement, in his view, isn't working, but Applen is hopeful the department will identify new producers "who will raise the bar during the next round of license applications."
Ortiz y Pino, like Applen and Scott, also objects to the department reliance on producers' self testing.
"I've heard all sorts of horror stories about the product having mold," says Ortiz y Pino, adding, "It's disappointing that a government entity, who's supposed to be protecting the public safety, lets the foxes check on the quality of what's going on in the hen house. Somebody objective needs to do it."
Even some producers agree that objective testing is needed to ensure safety. New Mexicann Natural Medicine founder Len Goodman, who operates nonprofit clinics in Santa Fe and Taos, says he supports the idea of using a government-run lab until another private vendor is approved.
He says most patients are not at risk, but notes, "Contaminants can be lethal for patients with compromised immune systems."
For now, Goodman and several third-party edible manufacturers say they've been instructed by Groggel to use Scepter Laboratory in Santa Fe or New Mexico State University's phytochemical laboratory, which tests for, among other things, the heat in chile peppers.
Scepter, which is operated by former state government employee Kathleen O'Dea, has applied to become a state-approved lab, but O'Dea tells SFR that she's still waiting to have her facility inspected and her testing protocols approved by Groggel. And NMSU professor Mary O'Connell tells SFR they don't plan to apply to become a state-approved lab in the future.
New rules, SFR has learned, won't even guarantee product testing all the time. The department may still waive testing requirements if the number of laboratories approved to conduct the tests is insufficient.