February 18, 2020

February 18, 2020

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February 17, 2020

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Nipped in the Bud: Massachusetts Regulators Send Strong Message to Cannabis Industry About Using Unapproved Pesticides On Cannabis Plants

Following a larger national trend in enforcing pesticide regulations on the nascent cannabis industry, Massachusetts regulators shut down two Massachusetts dispensaries for selling cannabis grown at a facility that used pesticides that were not approved for use on cannabis.

M3 Ventures, which owned the dispensaries, had grown the cannabis at their own in-state cultivation facility. The facility used two pesticide active ingredients (permethrin and piperonyl butoxide) which have long been approved for other uses, but not on cannabis. Massachusetts authorities were unpersuaded by M3’s argument that these pesticides were used sparingly, in lesser quantities than on fruits and vegetables, and only at the early stage of the plant’s life cycle. Instead, the Massachusetts Department of Health issued an immediate cease and desist order, finding that the cannabis grown by M3 Ventures “could pose an immediate or serious threat to the public’s health, safety, or welfare.” Health officials issued the cease and desist order because Massachusetts regulations prohibit the use of pesticides on medical cannabis. The case will likely be referred to the Massachusetts Department of Agricultural Resources.

This follows a September incident, in which Colorado-based medical cannabis company Good Chemistry, was cited in Massachusetts for similar pesticide-use issues. Good Chemistry’s Massachusetts growing and processing facility used three natural pesticides: sulfur, pyrethrins and Reynoutria sachalinensis (the latter of which is a giant knotweed extract). Good Chemistry contended that those pesticides pose no safety risk and their use is standard in the industry. The three pesticides, in some form, are approved for use on cannabis plants in Colorado, Nevada, Washington, and Oregon.

While Massachusetts disapproves the use of any pesticide on medical cannabis plants, other state programs are less stringent. Oregon and Colorado, for example, have developed guide lists for which pesticides may be used on cannabis plants. Both states require growers to submit regularly cannabis products for pesticide testing, and products that test positive for pesticides not on the list cannot be sold. Oregon’s Department of Agriculture also recently issued an alert noting it is investigating why some cannabis samples include high levels of permethrin and piperonyl butoxide, in exceedance of Oregon Health Authority action levels.

As more and more states continue to legalize cannabis, pesticide use will become a familiar compliance issue for companies interested in bringing cannabis products to market. New York is the next battleground, where Governor Andrew Cuomo announced on December 17 his intent to legalize recreational cannabis. States have been loathe to permit pesticide use on cannabis plants largely because illegality under the Federal Controlled Substances Act has preclude registration of pesticides for use on cannabis at the Federal level. Passage of the 2018 Farm Bill, which goes into effect January 1, 2019, could be a game changer for federal and state restrictions on pesticide use on cannabis plants. This is because for the first time in modern history, industrial hemp will be legalized and outside the constraints of the Federal Controlled Substances Act. Industrial hemp is any part of the cannabis plant with no more than 0.3 percent of tetrahydrocannabibol (THC) on a dry weight basis. Pesticide manufacturers will now be free to file applications to register products for use on industrial hemp.

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About this Author

Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm
Associate

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.

212-702-5415
Chris Strunk, Beveridge Diamond, Environmental lawyer
Of Counsel

Chris counsels clients on toxic tort, commercial litigation, and business transactions, with a focus on complex litigation involving the defense of toxic injury product liability and premises liability claims involving asbestos, mold, and airborne and water-borne contaminants and chemicals.

He represents multinational manufacturers of heavy industrial equipment, such as valves, pumps, and automobile engine gaskets and brakes; flooring material manufacturers; pesticide and fertilizer manufacturers and suppliers; and chemical and petrochemical companies.

Chris has successfully defended cases involving exposure to contaminants at sea (and in port) under federal maritime law, including Jones Act claims and claims brought under the Longshore and Harbor Workers' Compensation Act, as well as claims involving premises owners and alleged toxic exposures on those premises. He also has experience with litigation involving federal (including the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act) and state environmental statutes. He is also adept at overseeing and managing complex litigation in a national counsel role and has spearheaded coordination of statewide discovery and investigation for several major industrial manufacturers.

1.415.262.4016
Dylan King, Beveridge Diamond Law Firm, Boston, Environmental Law Litigation Attorney
Associate

Dylan maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. He has developed experience with solid waste facility siting, pipeline and hazardous material transportation regulations, site contamination litigation, and local zoning matters. Dylan joined the firm following his graduation from Vermont Law School with a certificate in Energy Law.

During his time at Vermont Law School, Dylan worked with the Vermont Law School Energy Clinic, helping clients develop solar...

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