In the Lab

Move over, marketing, this is a job for science.

As the New Mexico adult-use cannabis law allows for broader sales starting this week, microbiologist Kathleen O’Dea is worried.

Cannabis consumers avidly seek out the data provided by testing laboratories on THC potency—typically in a search for the highest numbers—but the work at O’Dea’s Scepter Lab in Santa Fe and Rio Grande Analytics in Albuquerque covers many more facets aimed at safety.

The labs have been testing cannabis for the state’s medical program under Department of Health regulations. That task has now shifted to the Regulation and Licensing Division and has undergone a rapid change. Both lab leaders report frustrations in how RLD has handled the work.

“This is kind of such a fun time,” O’Dea tells SFR. “It would be so nice to kind of play up the cannabis business and talk about all these beautiful plants getting ready to be put out into the market and how we are all testing away and getting ready to protect the public. That is not what is happening with this program at all.”

The Cannabis Control Division reduced the ratio each producer must provide from one sample for every five pounds produced to one for every 15 pounds. Further, the state agency recently stalled the effective date of pesticide testing and enacted other delays.

O’Dea says she’s appalled at how long it took the CCD to determine it wouldn’t impose some of the new rules called for in the 2021 law. While a January rules document said testing rule changes would go into effect March 1, an order issued March 9 paused many of them, including a requirement for labs to collect samples from producers.

Scepter had already invested more than $350,000 to purchase an instrument now sitting idle since the division delayed the requirement for the pesticide testing it performs.

Scepter Labs ordered a new spectrometer to conduct pesticide tests, equipment that is sitting idle as regulators delayed the test requirement. (Anson Stevens-Bollen)

“We called over and over again, dozens of times, me and my attorney, to find out what was going to be [required] on March 1,” she tells SFR. “So I invested in all the equipment to be compliant on March 1 to do all the testing. A week later they rolled all that back.”

O’Dea, who also has a law degree and worked for decades in state regulation, says the rulemaking is the worst she’s witnessed.

“I have been in this business since 2014 and have never felt so in the dark about what is required or received so little information from the regulators,” she wrote in an email to the division on Feb. 22.

CCD Director Kristen Thomson says the division delayed the sample collection change and new pesticide testing to “prevent bottlenecks,” noting none of the delays jeopardize consumers.

Barry Dungan, CEO of Rio Grande Analytics, tells SFR he’s also experienced a lack of communication from the department. The batch-size change was a surprise, for example. And while the batch size increased, the sample size remains the same.

Meanwhile, license applicants for retail, manufacturing and other permits are able to apply using a portal as well as see what other businesses have applied. Lab operators don’t have that option.

So while it’s been widely circulated that TriCore is developing a lab in Albuquerque, Dungan got the news from a corporate leader, not the state.

TriCore, which employs 1,500 New Mexicans, tells SFR it’s not sure how many people will work at the new Precision Botanical Laboratories initially.

“We are opening up a cannabis and hemp testing laboratory because there is insufficient capacity now in the state and with the legalization of adult-use cannabis, the need will increase and it’s really within our mission and our values to do high-quality things,” David Grenache, TriCore chief scientific officer, tells SFR.

PB Labs hasn’t filed a formal application with the CCD yet aims to open this summer.

Thomson tells SFR in an interview on March 25 she was “not aware” that TriCore was considering a leap into the cannabis testing industry and notes: “I believe that we have enough capacity for where we are currently, and we are actively seeking any partnership with a lab wanting to open within the state.”

O’Dea says her business has dropped by about 40% since the ratio of sample to pounds produced increased, and Dungan says he’s seen about a 30% drop, though both expect it will pick up over time as new producers bring products to the market in Northern New Mexico.

Not all the state’s changes are lax, however. O’Dea agrees the tests formerly required under the medical program for “total mold and yeast” weren’t helpful because products failed but didn’t necessarily present risk to consumers. Those have been dropped in favor of determining the presence of aspergillus, a fungus that has been shown to pose danger if ingested. Another test looks for the presence of residual solvents, or chemicals used in the extraction process for the manufacturing of concentrates.

And yes, CCD rules do call for the active THC content in each batch to be determined using a molecular analysis and algorithm. With great variety from plant to plant and even within various flowers of the same plant, however, the larger-batch testing means that number isn’t necessarily accurate for the bud you buy.

Beginning in April 2024, testing for homogeneity will be required: a method of sampling randomly selected increments of a product to see if they are similar. The Cannabis Regulation Act calls on the division to place sample collection in the hands of labs but does not mandate an effective date, that’s now expected to start March 2023. For edibles, new testing on undried, fresh cannabis for three microbes including e-coli is effective July 1, along with new pesticide tests on dried flower.

But consumers don’t have to rely on lab testing if they suspect a product is unsafe.

On March 25, the CCD issued a recall for pre-rolls of two strains sold by Sacred Garden after a consumer complaint led to testing that showed contamination. The dispensary has called the recall “voluntary.”

“Just like all reputable medical cannabis producers, Sacred Garden realizes that even while maintaining the most stringent practices, mold can still be an issue on rare occasions,” reads a statement to patients from General Manager Kent Little, who also raised questions about the division’s methodology and chain of custody policies.

To report a problem, send an email to CCD.complaints@state.nm.org

In the Lab

Flaws, uncertainty in New Mexico’s testing for THC potency and other measurements show bumps on the road to adult-use cannabis rollout

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