On Friday, the main question will be: Did there exist a credible risk to public health. Should Delta’s suspension now be lifted, after potentially dangerous products have been removed from the shelves?
By Rebecca Rivas, Missouri Independent
In states where marijuana is legal, recalls of cannabis products are becoming more common.
When Missouri regulators announced their first recall last month industry veterans were surprised. In most recalls, the company is working with the regulators to determine the problem. Was there a problem in the product? Or was the label incorrect? But this wasn’t the case in Missouri.
Products were immediately pulled from the shelves, and the manufacturer’s operations were suspended, as the state alleged “inversion”–illegally importing marijuana or converted hemp products into the state.
The saga will come to a conclusion on Friday when the state of Missouri and the marijuana producer Delta Extraction face off in front of the Administrative Hearing Commission about whether Missouri has overstepped its legal authority.
Officials with the commission say that a decision will not be made until a transcript from Friday’s hearing has been released, which could take up to thirty days. The commission will then issue its ruling after both parties have had a chance to submit their briefs.
More than 62,000 marijuana products have been recalled from dispensaries and storage facilities in Missouri. These products are being held in vaults.
Lisa Cox is the spokeswoman of the Missouri Department of Health and Senior Services which regulates Missouri’s cannabis program. She said that the products were being held until the department determined the product was safe, could be remedied or had to be destroyed.
What happens during a recall
During Delta’s appeal process, Missouri Division of Cannabis Regulation said that regulators were informed about the company’s activities – that it was adding hemp-derived THC from out-of state to marijuana products – through an anonymous tip.
The state’s software, Metrc, which tracks information about marijuana products is how they confirmed its credibility.
The marijuana plant is tagged as soon as it sprouts. This tag goes into Metrc and the yield of the plant is tracked all the way until it makes its way to a vape pen, or a joint.
Matt Regusci is the technical director for the St. Louis-based Cannabis Quality & Safety program, which offers an accredited cannabis certification.
He said that companies usually follow the rules to avoid losing their product. “This is often very clearly spelled out by each state’s regulations as to how they track it from seed until sale.”
He said that most traceability problems are “one-offs” caused by human error, such as when an employee types in the wrong amount or weight into the system.
He said that “a huge recall like this” is not usually the cause.
Regusci added, “It’s right up there with white collar crime.” It’s difficult to catch without a whistleblower who reports that something is going on.
Delta Extraction sued the state to try and stop the recall. A Missouri judge dismissed this case. He ruled that the Administrative Hearing Commission must complete its process before the courts can intervene.
“Lawsuits do happen,” Regusci said, regarding recalls. Regusci said, “Lawsuits do happen, especially in an industry where everyone is new. As more entities figure out what they need to be doing on both sides, there will be fewer lawsuits.”
This situation is also notable because the state suspended the license of the company immediately, something that experts claim is not normal.
Clark Wu, a cannabis and hemp law specialist in Arizona, said that it is rare for a state to issue an order of suspension at the beginning. In other states, the state issues a “deficiency” notice as part of the recall process.
What’s on your table
The commissioner will examine both the state’s right to suspend the operations of a company immediately and the recall on Friday.
Delta Extraction is a licensed marijuana manufacturer based in Robertsville that specializes making THC distillate. This highly potent form of THC can be used to make vape pens and edibles.
The state regulatory agency suspended Delta Extraction operations on August 2 after accused of the company sourcing “untested marijuana or converted hemp outside of Missouri licensed cultivation facilities.”
The state recalled a product on August 14.
The commission will address the following questions on Friday: Was there an actual threat to public safety? Should Delta’s suspension now be lifted, since potentially dangerous products have been removed from the shelves? Is the investigation still underway in relation to a credible, imminent threat to health or safety of the public?
According to law, the state may only suspend immediately – rather than giving 30 days’ notice – if there is a danger to the public’s health or safety.
Carole Iles, Administrative Hearing Commission, addressed this issue in her preliminary Order dated August 29. She denied a stay for Delta’s suspension.
Iles wrote in his article that the state constitution permits a licensee to suspend operations immediately “in cases where there is a credible, imminent threat to public safety or health.”
According to the cannabis regulations of the state, a potential threat can include situations where the product was not “tested in compliance” or “a credible police report that marijuana products are being diverted or inverted at the licensed facility.”
Iles stated that the state’s rules do not define “inversion”, but a state regulatory official gave a definition acceptable in testimony. He said it happens when cannabis plants, seeds or products made of them enter the regulatory system from outside the system. She said that this includes the addition of “chemically modified ‘converted cannabinoids’ derived from hemp to products.”
Iles stated that in her order, the information regarding a potential threat was credible as Metrc reports confirmed that Delta was “incorporating hemp-derived Tetrahydrocannabinol in its marijuana products against emergency rule.”
The emergency rule was in force from February 3 to the date that the final rule came into effect, July 30.
Iles stated in her order that “the regulation prohibited manufacturers from adding any THC to their products produced by the conversion from THC-A, or CBD from any other source than marijuana grown by Missouri licensed cultivators.” The use of THC derived from THC A or CBD from industrial hemp was prohibited.
The original publication of this story was by Missouri Independent.
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Photo taken by Kyle Jaeger.
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