Lab Grass

The colorful slides look like a kaleidoscope of blinking lights. They're microbial colonies living on samples of cannabis plants that failed to pass safety standards at Scepter Labs, the only laboratory in Santa Fe certified to run lab tests on cannabis.

Kathleen O'Dea, a microbiologist and the owner of the lab, says looking at the unwanted bacteria that can grow on plants gives her a fuller picture of what's happening in the place where they are grown. This way, she says, she can help the producers "achieve a more sanitary environment so they can pass tests."

State regulations demand that all cannabis sold to patients in New Mexico pass tests that gauge overall profile, including the potency and composition of cannabinoids and terpenes in a plant, as well as contamination by heavy metals, fungus, bacteria and solvents. The results of these tests are how the cannabis you buy in a dispensary gets its label.

O'Dea says she likes to work with growers to help them remediate bad samples once they're discovered. The state has relied on private labs to test cannabis products for much of the medical cannabis program's existence, and producers have mostly self-policed when problems with their crops arise. But now, a government cannabis testing facility is in the works, according to documents obtained by SFR.

Invoices, emails and other documents from the medical cannabis program indicate that the program, part of the state Department of Health, has spent at least $300,000 since last October on laboratory equipment, consultations and training for staff in order to build the capacity of the State Scientific Laboratory in Albuquerque to test cannabis.

Representatives from the program who earn government salaries refused SFR's request for an interview, and offered only a vague explanation of their plans for  the equipment and training. The purchases were from manufacturers and suppliers of lab equipment such as Tovatech, Thermo Fisher and Agilent.

"The Medical Cannabis Program has relied on the scientific expertise of our Scientific Laboratories personnel to help standardize compliance processes and requirements for approved laboratories," writes Department of Health spokesman Paul Rhien in an email. "Additionally, the new equipment and training are important steps in establishing a quality assurance lab for the medical cannabis program to help ensure patients have access to safe medicine."

The timeline of purchases also suggest a continuation of policy in place since the program's former manager, Ken Groggel, left last year. Groggel says that he advocated for the idea of an "assurance lab"—a state-run laboratory that could ensure that third-party labs like Scepter were accurately and fairly testing cannabis products—and that the program began moving in that direction around the time he left.

"The reason the [state] assurance lab was deemed so important [is because] it's like any other emerging industry; checks and balances need to be in place in order for the regulatory entity to be confident that products being sold to people with qualifying conditions are not only effective but are also safe for consumption," Groggel tells SFR in a telephone interview. He now works for Emerald Scientific, a California-based equipment distributor and supplier for the cannabis industry, where he helps conduct lab comparison proficiency tests for cannabis labs nationwide.

The state lab couldn't replace New Mexico's four private labs, he says, since the federal funding it receives could be imperiled due to the federal prohibition on cannabis. Instead, the state's assurance lab is supposed to "conduct ongoing observation [through] their own testing to ensure that the [private] laboratories are performing in a responsible manner."

This could include the use of a "secret shopper" program, Groggel says, wherein medical cannabis program personnel go to dispensaries without announcing themselves, purchase products, and then test them at the state's lab to confirm that the labeling on the package is correct.

Department of Health spokesman Rhien denies that the medical cannabis program has plans to carry out a secret shopper program for the time being.

Opinions on the prospect vary among New Mexico's private labs. Staff at Steep Hill, a national company that has a laboratory in Albuquerque, say that they've witnesses disingenuous labeling and testing in other states where they've worked, and are supportive of secret shopping.

"If the state doesn't have the teeth to enforce their own rules, then bad actors prevail and people do things they're not supposed to," says Nathan Gilbert, manager for Steep Hill's Albuquerque lab.

O'Dea of Scepter Labs disagrees.

"I don't think a fear-based regulatory system works as well as one based on trust and cooperation," she says. One serious problem with testing the testers is that New Mexico's cannabis program lacks consistent guidance for how samples should be procured for testing. Variations in testing might not be due to poor testing procedures, but rather because the state's secret shopper bought a sample that didn't match the one tested in the lab, she says.

Gilbert agrees that regulations for how labs test samples from growers could be clearer.

"The problem with sampling is really that the producers are in charge of having a protocol to send samples to a lab to be tested," he says, suggesting that some producers are sending off only the nicest parts of their plants for testing because they yield the highest potency score.

A higher listed potency usually means higher sales, which can create perverse incentives for growers to "shop around" for the lab that gives them a high score. If the cannabis program can figure out a way to standardize the sampling process, a state assurance lab could undermine that kind of trickery, if it exists.

"You have to have somebody that's at least relatively independent of the grower or manufacturer selecting the samples, and that's what the intent was when we up the state's assurance lab," says Groggel.