The Oregon Court of Appeals halted the state cannabis industry’s Aspergillus testing after a cohort of growers pushed back on the new rule, which originally went into effect March 1, 2023. The order, issued nearly six months later on Aug. 25, considered the “irreparable harm” to Oregon cannabis businesses that has arisen from this rule.
The stay will remain in effect “pending judicial review” of the rule. The court even hinted that this more detailed judicial review of the Aspergillus rule could very well land in growers’ favor.
This pause is effective immediately.
At the core of the stay order is the contention that the Oregon Health Authority (OHA), in promulgating this rule, did not consider less restrictive alternatives than the zero-detect threshold on Aspergillus content in cannabis products. The final rule authored by OHA reads in part:
“A batch fails microbiological contaminants testing if … [t]he presence of any of the following species of pathogenic molds in one gram of sample: Aspergillus flavus, A. fumigatus, A. niger and A. terreus;…”
That no-margin-for-error language (“…the presence of any…”) is what threw Oregon cannabis growers for a loop earlier this year, when microbial testing failure rates shot up to nearly 25% following the implementation of this new rule. Given the “endemic” nature of Aspergillus—in outdoor and indoor settings, in greenhouse settings—growers unable to get past that testing threshold were left with few options: treat their next crop with fungicides, treat their failed harvests with various “remediation” techniques, or shutter their cannabis business outright. This is where the “irreparable harm” comes into play.
Some cannabis growers did indeed shut down their operation and move out of state, raising red flags on the viability of the Oregon market as a going concern. Others banded together with the Cannabis Industry Alliance of Oregon to file this lawsuit.
The court notes that OHA had a choice in this rulemaking effort. Going so far as to place a zero-detect threshold on the Aspergillus species in question was not the only option when it comes to microbial testing regulations in cannabis. In fact, each state cannabis market approaches this matter differently, providing dozens of extant regulatory options for an agency like OHA.
“Further,” the court continued, “the rulemaking record shows that OHA was aware of less restrictive alternatives adopted in other states and, in adopting this rule, failed to find that those less restrictive alternatives are inadequate to protect public health and safety.”
Central to that argument is a legislative mandate in Oregon that agencies like OHA consider such alternatives.
But this was not simply a procedural victory for the state’s cannabis growers. The court also agreed with the petitioners in this case, who asserted that a stay on this rule would not harm public health and safety. In the informal debates taking place on LinkedIn and elsewhere for the past six months, this has been a core argument in favor of Aspergillus testing: that if the state does not test for these species, then the industry is putting consumers in danger of life-threatening illness. The court was persuaded by the growers’ argument that, no, cutting back on this particular test will not affect broader public health and safety.
The OHA and the Oregon Liquor and Cannabis Commission, for their part, in this case, had nothing to say on that issue. Earlier this year, however, OHA spokesman Jonathan Modie told Willamette Week, “We don’t have any research or data to cite that show people have fallen ill from inhaling Aspergillus through cannabis products.”
The impending judicial review will have more to say on that, no doubt. In the meantime, though, cannabis growers express their joy on social media, reiterating not only their sober assessments of testing regulations, but also their simple excitement about working in this industry in Oregon in the first place.
