Odor is a powerful force. A simple waft from a fresh pot of coffee can be enough to excite your senses and get you ready for your day. The first whiff of fresh cut grass signals the arrival of spring. And a sniff-and-touch test is still a standard for determining when cannabis has been sufficiently cured.

Odor is also powerful in that it can cause headaches, both figuratively and literally, for you and your business. A complaint about a smelly grow facility or extraction lab can (and often does) quickly escalate from a neighborly squabble to civil suits, fines and regulatory crackdowns.

Unfortunately, odor control is grossly misunderstood. For example, significant differences exist between odor masking and mitigation, as well as between the effect of each on your cultivation operation; nearly a quarter of cultivators, however, are unaware of the differences, according to the research behind this “Special Report: Cannabis Odor Control.” Terms like misting and vapor phase technologies will cause nearly 75% of cultivators to scratch their heads as well; just 25% of cannabis cultivators know the difference between those two odor-masking and -control methods.

This is why Byers Scientific & Manufacturing has partnered with Cannabis Business Times to support vital research in this first-ever deep dive into cannabis odor control, as well as the implications cultivators face when odor becomes an issue for neighbors and/or municipalities.

As cannabis cultivation proliferates throughout North America and beyond, odor control becomes a more pressing concern. Communities unfamiliar with, and often wary of, cannabis don’t typically welcome cannabis odors with open arms. Even those municipalities that do embrace cannabis businesses may turn up their noses at the stench. In fact, nearly 1 in 5 research participants said they have received complaints from neighbors or the community about cannabis odor. Today, having an odor control plan is often a requirement to obtain a permit or operating license.

We started Byers Scientific & Manufacturing to leverage next-generation odor control solutions to join like-minded entrepreneurs and corporations working to leave our globe in a healthy state for future generations. In the cannabis industry, we observed a significant need to educate cultivation businesses about odor mitigation and the environmental and financial risks stemming from misinformation or a lack of knowledge about available solutions.

We are pleased to support Cannabis Business Times in this effort to learn about your odor-related challenges and needs, so that together we can better serve you and other cultivation and processing businesses in building a better, and better smelling, cannabis industry.

Cannabis odor control is serious business, especially when neighbors take cultivators to court over it. Some have done just that in Colorado, California and Oregon, suing cannabis growers under the Racketeer Influenced and Corrupt Organizations Act.

Commonly referred to as RICO, this act is known for Mafia- related prosecutions by allowing ordinary citizens to sue criminals who cause them financial harm and collect three times the amount of damages jurors find, in addition to attorney’s fees. Due to marijuana’s Schedule I drug classification, marijuana cultivation and sales remain illegal under federal law, leaving the door open to RICO prosecutions.

While judges in these prominent RICO suits ruled against the plaintiffs, the cases remain notable as they highlight risks involving cannabis odor, and in the Colorado suit—the most publicized of the cases—how odor control contributed significantly to the defense.

Colorado

Michael and Phillis Reilly turned to federal court in 2015 when a cannabis grow (Alternative Holistic Healing) moved next door to where the couple kept their horses. A panel of the U.S. Court of Appeals for the 10th Circuit found that growing cannabis for sale is a violation of federal law, and thus “is by definition racketeering activity,” which could decrease the Reilly’s property value. The panel also found it plausible that alleged odor from the facility could make the couple’s property less valuable. The appeals court sent the case back to district court.

Matthew Buck, the defense attorney representing the land owner, Parker Walton, argued during the trial that the grow did not cause any odor due to its odor-control system, which did not vent outdoors. He added that the Reillys’ property value had actually increased, not decreased, as claimed. On Oct. 31, 2018, a jury in Denver decided that the grow facility did not hurt the Reilly’s property value, ending the closely watched case in favor of Walton.

California

In August 2018, residents in a Sonoma County, Calif., neighborhood filed a lawsuit in San Francisco federal court accusing Carlos Zambrano and his company, Green Earth Coffee, of violating racketeering laws by running his cannabis cultivation operation without local permits or a state license. Zambrano had applied for a cultivation permit, which was not issued and was pending an appeal at the time of the lawsuit. The neighbors alleged that the grow’s noise and odor were major disruptions to the area.

Zambrano filed a motion to dismiss the case in October 2018. In it, he said that the nine neighbors suing him had not stated a valid claim under RICO, as they had not suffered financially. On Dec. 27, 2018, U.S. District Judge Jon Tigar ruled in Zambrano’s favor—that the neighbors could not sue Zambrano and his operation under RICO because bad odors and noise are nuisances that do not cause the kind of measurable financial losses required to pursue a case. The ruling came several weeks after Green Earth Coffee ceased its operations as part of an agreement with Sonoma County’s permitting department, which said the business did not comply with all its rules.

Oregon

Plaintiffs in Ainsworth v. Owenby filed a RICO lawsuit in December 2017 against a cannabis cultivation operation with a greenhouse on a neighboring property. The landowners argued that noise from the facility and the “persistent stench of marijuana,” among other complaints, had disrupted their lives and made their properties “worth materially less than they otherwise would be” and “harder to sell at any price.” The district court summarized the plaintiffs’ complaints into three injuries: “(1) diminished use and enjoyment of their properties; (2) reduction in the fair market value of their lands; and (3) expenditures on additional security measures.”

Ultimately, the court found that—similar to the Colorado case—these three injuries were not actionable under RICO, and the case was dismissed in August 2018.

On Jan. 29, Santa Barbara County supervisors organized what turned out to be a contentious meeting on cannabis regulations. About a year prior, the county passed its local cannabis ordinance, and it was time to check in and evaluate the progress thus far; the public, as noted in a December New York Times article on the county’s cannabis cultivation odor issues, was not overwhelmingly supportive. Audience members at the meeting wore clothespins attached to lapels and collars, signifying “the need to pinch their noses,” as a reporter from the local ABC news affiliate, KEYT-TV, explained.

“We’ve had enough,” Carpinteria resident Maureen Foley Claffey said at the meeting, according to a report by the local news outlet Coastal View. “Pot stinks, and we’re mad as hell.”

As municipalities and county governments around the U.S. are finding out, regulating a new industry forces a steep learning curve.

Das Williams, supervisor for the First District of Santa Barbara County, has been at the forefront of cannabis regulation development so that the county would have something on the books and a legal foundation. In addition to organizing public hearings in Santa Maria, Williams even hosted a community meeting at his home in Carpinteria, the coastal city of 13,600 residents all neatly packed in among 14 square blocks. In those meetings, he learned that odor is a top concern for community members.

“Getting odor control right is just crucial for any community where there is close proximity between growers and a large number of residents,” Williams says.

Santa Barbara County started by building odor control technology requirements into the county’s zoning codes. “We put a term that is used in laws often of ‘best available technology’ that preserves our ability as technology improves to ask for better odor control—and demand better odor control,” Williams says.

In addition to licensing requirements, counties can control land use requirements as part of their odor control tools, meaning they can determine what type of structure or business can occupy which zones.

“If you mandate odor control, you are de facto banning outdoor cultivation in a zone where you mandate odor control,” Williams says. “And so, we have done that in Carpinteria. We have both de facto banned outdoor cultivation … by mandating odor control, and we’ve done it de jure by requiring a buffer of 1,500 square feet between residences and outdoor operations. In Carpinteria, that means there’s only two or three parcels that would qualify. … Essentially, our permitting tends to favor greenhouses.”

Carpinteria’s population density is just over 1,400 people per square mile, according to 2010 U.S. Census figures, more than five times California’s average of 251 people per square mile. Williams says his county’s plan worked for his densely populated corner of the California cannabis market. In communities with different population densities, however, Williams counsels a more personalized approach.

Complaints and Solutions

The onus is on greenhouse operations to apply the “best available technology” to keep their plants’ odor at a reasonable standard. Dennis Bozanich, deputy county executive officer with Santa Barbara County, says that the legislation has given his agency a proper baseline for enforcing local code. It’s a work in progress, as most cannabis laws are, but it’s given him and his team a path forward to work with both businesses and residents.

“It does tend to be complaint-driven, but it’s also proactive as well,” Bozanich says. “As part of the compliance team, we have staff regularly visiting licensed operators, identifying practices or business operations that are outside of the requirements established in our local regulations. We then cite and/or come up with an improvement plan for them to come back into compliance.”

Further, the ability to enforce an ordinance gives Bozanich a chance to suss out illicit grow operations in the county. When responding to a complaint, the county team will first assess whether it can be traced to a nearby licensed grow facility; other times, a complaint may lead them to an unlicensed business that needs to be shut down. The county spends $1.7 million per year on an enforcement team that’s eradicated about 1 million plants from July 2018 to March 2019, Bozanich says.

Often enough, though, he says the county is building cannabis odor into a more proactive conversation with licensed growers.

“At times,” Bozanich says, “we will go to an operator as part of our compliance check to say, ‘Look, we’re continuing to get a large number of other complaints. When was the last time you looked at your own odor control system? Is everything operating normally? Are there any service needs? Were there any purposes for which you had the system shut down for any period of time, for routine maintenance, for example? What was the duration of that?’ And then we’re working with them to make sure they are operating that odor control system as consistently and as finely tuned as possible.”

When it comes to selecting an odor control technology, Williams says “the real key here is: What’s the maximal effectiveness of a system that you can do with the lowest energy use?

“That’s a balance. If the energy use is so high, then the operator will be tempted to turn it off sometimes. … That of course would defeat the purpose. So, getting this right from a technical perspective and from a standards and community expectations perspective is really important,” he says.

And it is, in the end, a conversation. As the licensed cannabis industry comes into its own, Santa Barbara is joining an increasing number of local governments and business communities trying to wrangle an understanding of how cannabis will interface with the rest of society.

Williams and his fellow supervisors talked to professionals in solid waste circles and in the odor control vendor community. Then, of course, the growers and Santa Barbara residents weighed in on how to enforce this balancing act.

“We’re still learning,” Williams says. “I don’t want to say that we’ve gotten it all down. We established in the ordinance a standard, and we will, by experience, learn how to do it better.”

To measure odor you must measure the “psychological response of humans to the olfactory stimuli,” Dr. Ardevan Bakhtari, president of Scentroid, an odor detection technology and solutions company based in Whitchurch-Stouffville, Ontario (Canada), tells Cannabis Business Times.

That subjectivity is what makes handling odor situations difficult, as neighbors might experience cannabis odors differently than cannabis business owners. Responses to odor also may differ among neighbors on the same street or team members in the same company. How can a cannabis business owner resolve a problem they cannot objectively measure? How can courts rule whether a civil or criminal odor-related lawsuit has merit if arguments boil down to “he said, she said”?

One solution is an international standard that has been around for nearly 60 years: an odor panel.

What is an odor panel?

Odor panels are groups of specially trained odor experts, called “odor panelists” or “odor assessors,” who take and measure air samples to determine odor levels.

“A panelist is a ‘trained nose’ that we’ve measured the sensitivity [of] using a known compound,” Bakhtari explains. Panelists are selected through a smell test of n-Butanol, an alcohol that is detectable by 90 percent of the human population when present in concentrations ranging from 20 ppb (parts per billion) to 80 ppb. To put together an accurate panel, “we’re not just looking for a super sense of smell,” says Scentroid’s president. “We’re looking for people who fall within that norm of human detection.”

Humans remain part of the odor detection process because, simply put, no technology can detect and identify smells like the human nose. Indeed, the human nose can distinguish between one trillion odors, according to research published in 2014, orders of magnitude more than even the most expensive odor detection technology can capture, Bakhtari says. In addition to differentiating between odors, the human nose “can detect pollutants at part per trillion levels,” he adds.

How can an odor panel help a cannabis business?

Odor panelists can assist cannabis businesses by conducting odor studies that identify which processes emit the most odors, where those odors are escaping the facility, as well as help with identifying and selecting technology solutions, Bakhtari says.

An odor panelist can also act as an expert witness in court proceedings. In fact, an odor panel is the only evidence accepted by courts in odor-related lawsuits, Bakhtari says. (See p. S7 for more on cannabis odor lawsuits.)

“There is some negativity toward cannabis production,” Bakhtari says. “And it kind of gets ugly, because [opponents] say the odor is very strong, and then an inspector can go and there is no odor. Because you cannot measure it easily, it becomes a ‘he said, she said.’”

Scentroid recently was called to testify at a hearing when a resident sued a Canadian licensed cannabis producer (LP) over odors emanating from the facility. Using an odor study and site visit, the odor panelist was able to prove that “the [LP] was doing everything properly and there wasn’t that much odor,” Bakhtari says.

Because odor is such a powerful sense, Bakhtari advises that cannabis business operators handle any odor complaints quickly and fully. “One of the issues with odor is that because it’s a psychological thing, if there is an actual odor and it lingers, people … will develop a hyper-sensitivity to this odor. So as soon as you get the complaint, try to solve it right away.”