(Beyond Pesticides September 23, 2015) Last week in Colorado the attorney general (AG) began an investigation into the use of the word âorganicâ by marijuana businesses operating within the state amid complaints of misrepresentation by consumers. This decision to look into potential misuse of the term âorganicâ follows on the heels of a recallÂ for marijuana plants that was voluntarily issued by two Denver marijuana growing facilities after city health officials found unapproved pesticides on their crops during routine testing. The AGâs office decided to review this issue after complaints from consumers that merchants are misrepresenting their products when they claim they are âorganicâ or âorganically grown.â
State marijuana license records in Colorado show that 29 businesses âgrowers, retailers and dispensariesâ use the word “organic” in their name. Because marijuana is illegal under federal law, and use of the term “organic” is federally regulated, a licensed cannabis business cannot be certified as organic no matter its practices. As such, city and state officials as well as industry insiders argue that no marijuana business in Colorado can technically use the word in its name or in selling its product.
According to the United States Department of Agriculture (USDA), âMarijuana may not be certified organic under the USDA organic regulations [because it] is considered a controlled substance at the federal level, and organic certification is reserved for agricultural products.” Moreover, USDAâs National Organic Program (NOP) rules say that companies with “organic” in their name cannot prominently display it on a product and cannot use the name at all if it misrepresents that a product has been certified organic. Jay Feldman, Executive Director of Beyond Pesticides agrees with this interpretation of current law, stating that:
âThe way I see it is very simple. The organic standard has always been monitored at the federal level and has very clear policies and procedures that farmers must follow to certify their products as organic. Until the USDA and other requisite federal agencies are able to assess cannabis crops under those established rules, allowing companies to label their products as âorganicâ is misleading to consumers and undermines the integrity of the organic label as a whole. However, we believe that individual certifiers can inspect and certify product and use their own label.â
Though the AGâs office did not offer a great deal of insight into the parameters of their investigation, a spokesman for the office did highlight consumer fraud and criminal charges as legal avenues they may pursue. Â Fraud penalties under the Colorado Consumer Protection Act include fines of up to $10,000 per violation, and federal rules say that businesses wrongly selling a product as organic could face fines of up to $10,000.
The investigation by the AGâs office into the use of the term âorganicâ signals the involvement of yet another government entity in the ongoing struggle to resolve the issue of allowed pesticides use on marijuana crops in Colorado. This past May a U.S. District Court judge weighed in on the issue by refusing to lift a quarantine ordered by the Denver Department of Environmental Health (DDOH) on marijuana plants estimated to be worth hundreds of millions of dollars. The DDOH placed the quarantine on the plants grown by a company calling itself âOrganic Greensâ after they found âsufficient evidence that marijuana plants or marijuana product on the [Organic Greens] premises may have been contaminated by pesticides that have been determined by the Colorado Department of Agriculture to be illegal to use marijuana.â This quarantine not only shed light on the use of illegal pesticides by growers in the state, but also on the misleading nature of companies that use the term âorganicâ in their name but do not follow traditional organic practices.
This creates major problems for the Colorado Department of Agriculture (CDA), which, in the absence of federal oversight, would have to step up and fill the accreditation gap as well as enforce any violations of state or federal law when it comes to businesses that claim to be âorganic.â CDA has already faced challenges regulating growers when it comes to their use of pesticides on marijuana crops, and in July they received a letter warning them of potential violations of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) should they allow the use of any pesticides aside from those found on FIFRAâs 25(b) list of pesticides âof a nature not requiring regulation.â Currently, whether a pesticide is allowed for use in the state depends on whether it can be found on CDAâs list of âPesticides for use in marijuana production,â which allows pesticides outside the confines of the 25(b) list, despite the fact they have not been registered or reviewed for use on marijuana with the EPA.
The Attorney Generalâs investigation plans to focus, at least in part, on companies that use pesticides not found on the list of pesticides approved for use on marijuana by the state. While they do not intend to substitute themselves for a certification agency, a spokesman from the office says that they are confident in taking action against those companies that are clearly using banned pesticides while simultaneously claiming to be organic will be a positive step in helping ease the confusion for marijuana consumers.
More information about state (including Colorado) regulation of pesticide use in marijuana cultivation can be found in Beyond Pesticidesâ investigativeÂ reportÂ on the issue, which was published this past spring. The report highlights different approaches used by states and raises safety concerns due to loopholes in federal law. The report also recommends that states with legalization adopt laws governing cannabis production that prohibit federally registered pesticides and require the adoption of organic practices that only allow products exempt from registration based on the full range of possible exposure patterns, which is the same position expressed to CDA inÂ Beyond Pesticidesâ letter.
Source: Denver Post
All unattributed positions and opinions in this piece are those of Beyond Pesticides.