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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 362

TRENDING LEGAL ANALYSIS


About this Author

Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

212-702-5415
Christopher D. Strunk Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA
Of Counsel

Christopher D. Strunk has more than 20 years of experience litigating complex environmental and toxic tort disputes.  

He focuses on the defense of large, multi-party environmental matters, including mass tort and products liability litigation involving alleged toxic injury arising from asbestos, lead, mold, solvents, and other contaminants. He has represented microchip and technology companies, chemical and petrochemical companies, heavy equipment manufacturers, and the pesticide and fertilizer industry. Over the past five years, he has also developed a significant industrial hemp and cannabis practice, defending ancillary and plant-touching businesses in environmental disputes and litigation. 

Environmental

Chris has extensive knowledge of relevant state and federal environmental statutes, with considerable experience in CERCLA and RCRA claims. He has also successfully defended numerous nuisance and trespass cases arising out of alleged site contamination, and aggressively defends clients in administrative enforcement actions arising out of alleged violations of state law and local ordinances. 

Toxic Tort

Chris is particularly experienced in the defense of toxic tort matters, having litigated dozens of cases from filing through final resolution in both state and federal court. He enjoys the challenge of developing creative, “out of the box” approaches to complex issues in order to obtain the best result possible for his clients, whether that means a reduced settlement, winning a dispositive motion, or obtaining a defense verdict. He has also served in a national counsel role for several product manufacturers, overseeing and managing complex litigation and spearheading the coordination of statewide discovery.

Regulatory

Recognizing that the best defense in a lawsuit is avoiding one in the first place, Chris counsels clients on compliance with state and federal environmental statutes and assists clients in drafting product warnings and other liability-limiting documents in order to proactively limit downstream litigation risks. Chris also has experience developing internal policies and procedures for his clients to address environmental risks, including responding to the airborne or water-borne releases of contaminants. Finally, Chris assists clients in managing environmental incidents and their aftermath, including appropriate response and reporting, managing health and safety issues, and working with regulators to address remediation issues. 

Business Disputes & Transactions

In the commercial context, Chris has experience with business litigation, including business torts, breach of contract claims, insurance coverage, and bankruptcy. He has counseled businesses, large and small, on all aspects of business formation, operation, and dissolution. In the process, he has drafted operating agreements, vendor agreements, policies and procedures, commercial leases, liability releases, rights agreements, and agreements governing ownership of intellectual property. Chris also has experience overseeing environmental due diligence in real estate transactions involving contaminated sites.

415-262-4016
Dylan J. King Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Associate

Dylan uses his legal and business skills to help clients solve problems.

He 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...

617-419-2355