How Cannabis Companies Can Avoid Lawsuits and Scrutiny with Accurate Lab Testing

By Roger Brown

The enduring federal cannabis ban means cannabis companies have no national testing rules, standardization, or guidelines to follow. To make matters worse, states lack oversight mechanisms to check label accuracy and weed out bad actors efficiently. These compliance gaps, combined with the market’s misguided focus on selling unrealistically and inaccurately “high-THC strains.”

The latest RICO suit in Arkansas is one prime example. In this pending case, three patients filed a class action lawsuit against two growers and a testing facility for artificially inflating THC concentration. While official claims like this are rare, cannabis potency mislabeling is not. I am not referring to dry-weight vs. moisture-weight levels (depending on state regulations) which would only vary by 3-5%. I am referring to blatant inflation of 10-20% false THC levels. I have personally lost clients to competitive laboratories that offered inflated THC results. Those laboratories purposely exaggerate potency results to gain more business. Less nefariously, I’ve witnessed inexperienced laboratories accidentally get THC results wildly wrong. Laboratories make mistakes but constantly super high unrealistic THC levels are purposeful. Whatever the cause, false labeling puts brands in legal jeopardy and is detrimental to patients who rely on accurate results to determine products’ safety and efficacy.

Fortunately, cannabis growers, businesses, regulators, and laboratories can all be part of the solution.

Cannabis brands must seek qualified laboratories.

This suggestion may seem obvious. However, it’s essential to restate that experience, transparency, and award-winning quality are the most important factors when choosing a laboratory to reduce liability risk. Conversely, selecting partners based on price or high THC levels is dangerous. Cannabis companies that want accurate results must ask these key questions before choosing a laboratory to test their products:

1.     How many years have you been in business?

Medical marijuana is a relatively young industry, depending on the state, which means laboratories have a range of qualifications. A good rule of thumb is to seek laboratories that have refined their testing methodologies over five to 10 years and have proven capabilities through accreditations, interlaboratory proficiency testing, positive reviews, and industry awards.

2.     What testing awards have you won?

Any laboratory can apply for pay-to-play testing awards and throw a self-congratulating badge on their website so in addition to asking what awards a laboratory has won, growers and operators must also ask what organization gave out the award and what was the criteria for winning.

Laboratories should be able to point to accolades from objective, independent bodies like Emerald Scientific emerald badges that evaluate multiple labs’ testing precision against the same proficiency test and then compare the results to determine which lab aligned closest with industry testing standards.

3.     Can I tour your facility?

From my experience, most cannabis growers and businesses choose laboratories without stepping foot onsite. However, selecting a testing facility based on a website alone is not advisable. To reduce liability risks, companies should ask for a facility tour. Reputable laboratories will have no issue with this request, pulling back the curtains on their operations to show clients precisely how they work.

While on tour, cannabis brands should inspect the entire building and equipment for quality and cleanliness. They should also ask about testing protocols and expect to see a principal scientist with a senior-level chemistry background supervising the operation.

Start Plant Health and Potency Testing Before Harvest

One of the best ways cannabis operators can avoid mislabeling lawsuits is to start testing THC potency and plant health early and often so they know what to expect. By the time the cultivation cycle is complete, growers should firmly grasp their anticipated cannabinoid results and communicate those expectations with the laboratory.

In the same way, this practice also helps laboratories check their ownwork. By conducting THC potency tests well before the batch reaches maturity, growers will know the range of their results. And if their final results are 20% higher or lower than pre-harvest findings, the laboratory should see that as a red flag triggering them to re-test the samples.

Laboratory Collectives

Cannabis brands must do everything in their power to find a reputable laboratory. However, due diligence alone will not solve the false labeling problem. The industry needs regulatory oversight to ensure all laboratories, growers, and brands follow the rules and publish accurate potency results. Today, there are simply not enough checks and balances. Regulators occasionally request to see test results, but they rarely dig deeper to ask labs how they arrived at the final number because they lack reliable mechanisms to verify the accuracy.

In my vision of the future, licensed and certified laboratories will form collectives to be that missing oversight authority for the regulators. These collectives will be the regulators’ resources to cross-test label claims against industry standards. This is an easy, cost-effective solution that will help regulators identify dishonest actors, remove mislabeled products from shelves and restore trust in this industry. A regulator selects random products from the shelves and sends them to three different licensed and certified laboratories and compares the results… it’s an easy solution.

Beyond THC Testing

THC potency mislabeling isn’t the only liability risk cannabis companies face. They’re also susceptible to lawsuits over contaminated products. In one recent case, a Canadian cannabis producer reached a proposed settlement of $2.31 million for selling pesticide-ridden medical cannabis.

There’s no excuse for selling tainted products, especially to medical patients whose immune systems could make them more susceptible to getting sick. That’s why brands must consider working with laboratories that offer full panel safety tests beyond the baseline of what states require. Some tests include:

Shelf life and stability to understand proper storage methods and prevent environmental degradation risks. Bottles, packaging, and rolling papers analysis to rule out packaging contamination. Pesticides, heavy metals, mold, and mycotoxins testing–beyond state requirements.

The Bottom Line

Accurate laboratory testing is essential to help cannabis growers and operators avoid legal risks. More importantly, accurate results are necessary to raise the bar on quality, enhance trust, and give patients the safe, clean formulas they deserve. Reputable cannabis brands can contribute to a more honest industry today by going out of their way to partner with experienced laboratories. In the future, regulators can partner with certified laboratory collectives to cross-test products and create a meaningful difference and eliminate bad actors.

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