Cannabis growers across Oregon have been fighting tooth and nail with regulatory authorities over the presence of mold in their crops. On March 1, The Oregon Liquor and Cannabis Commission (OLCC) announced new rules regarding Aspergillus (pronounced: a·spr·gi·luhs), a common mold genus with more than 250 strains that exists indoors and out, and has been known to cause infections in immunocompromised people.

Oregon growers were given almost no time to adapt their methods to fit the new regulations. In some cases, the OLCC even recalled cannabis harvested and tested before the new mandate was announced, as was the case for Rebel Spirit Cannabis Co. whose products were recalled even though they had been tested in January, two months before the mandate. The sheer magnitude of this problem seems unsettling on its face. But to fully understand these new rules, it is paramount that we understand the real danger posed by Aspergillus molds.

These new policies were consistent with 19 of the 20 other states that require Aspergillus testing of their cannabis products. If tests revealed any Aspergillus in a 1 gram sample then the whole batch was considered a failure. According to the OLCC, this crackdown caused the recall of 10 separate batches of cannabis in late June sold by about 75 retailers Oregon-wide between January and June of 2023.

Aspergillus is so common that it’s more than likely that an individual will breathe in at least some Aspergillus spores every single day, according to the Centers for Disease Control (CDC). So what’s the big deal? Well, some strains of Aspergillus are categorized as pathogenic, meaning that they are the most likely to cause an infection in humans known as Aspergillosis. According to the American Lung Association, Aspergillosis is an infection that “commonly includes coughing up blood, fever and chills, headaches, chest pain and shortness of breath.”

The OLCC tested crops for four different strains of pathogenic Aspergillus. Those at the greatest risk of developing Aspergillosis are immunocompromised individuals whose bodies cannot fight off the pathogen. This risk, unfortunately, is a constant one, given the ubiquitous nature of Aspergillus, and is in no way constrained to the handling or consumption of cannabis.

The National Institute of Health (NIH) published a study in 2011 claiming that “Invasive aspergillosis has been described in association with marijuana smoking in two cancer patients on chemotherapy, two leukemia patients, a renal transplant recipient, and a few patients with AIDS.” The study concludes that they don’t recommend that people with compromised immunity smoke cannabis. But also that “the risk is not possible to quantify.” More research must be done in order to fully understand the significance of Aspergillus contamination in our cannabis.

In response to the new rules put in place by the OLCC, the Cannabis Industry Alliance of Oregon (CIAO) launched a lawsuit on July 28, 2023 against the OLCC and the Oregon Health Authority (OHA), petitioning the Oregon Court of Appeals to immediately intervene in the enforcement of these mandates on the grounds of substantial harm to the cannabis industry. The court has yet to make an official decision on the matter.

However, on August 25, the Oregon Court of Appeals issued an emergency stay on the new OLCC rules while the court decides what should be done. As a result, the Oregon Secretary of State filed a temporary administrative order rolling back the new OLCC rules. This means that growers whose crops were recalled on or before August 25 will need to have them retested. The statement of need portion of this filing states that: “Remediated items are not required to be tested for Aspergillus.” Any crops recalled just for Aspergillus and no other contaminants, such as heavy metals and mycotoxins, should be approved for sale. Such a rule change even temporarily is a massive victory for small and organic growers across Oregon.

Despite the low risk, removing Aspergillus from Oregon cannabis could still be a reasonable measure taken in the interest of public safety. However, this removal is not a simple process. Actions that must be taken to ensure Aspergillus is not found in a grower’s batch of cannabis are incredibly costly and not always effective. For example, in most states where testing for Aspergillus is mandated, growers are forced to irradiate all of their products. This process removes the chance of testing positive for Aspergillus, but it also has an incredibly negative effect on the quality of the cannabis.

According to the lawsuit filed by the Oregon growers, the “CIAO is unaware of any remediation option that both (1) guarantees that remediated cannabis will be 100% free of aspergillus or its spores, and (2) does not affect the terpenes, THC content, or otherwise degrade the cannabis.”

The lawsuit also states, “a substantial segment of Oregon’s cannabis market, have built their business reputations on providing organic, ethical and sustainable cultivation techniques. The Aspergillus Testing Rule and its pressure on all producers to minimize or eliminate microbiological populations will have a disproportionate impact on these producers and will likely decimate their market presence.”

Growers like Holly Hillyer at Utokia Farm see the rules as a likely death knell in the ever-evolving industry, especially for many “legacy growers” and mom-and-pop couples growing on the side who threw the towel in. According to Hillyer, many farmers, especially those using organic methods, turned to extreme measures such as using chemicals, like chlorine dioxide, or purchasing expensive radiation machinery.

“When they started implementing the testing, there was no time to really prepare,” Hillyer said. “None of the labs had the equipment to do R&D tests to see if this was even a problem”

The emergency stay granted by the Oregon Court of Appeals allows Oregon growers a fall harvest free of Aspergillus testing. This is a temporary victory for the growers, but a final decision has yet to be made. The court will have to weigh the cost of harm to the cannabis industry against the potential harm to health and safety posed by Aspergillus. The nuance of the arguments presented to the court and the lack of substantive scientific evidence about the harms of Aspergillus on either side make this a difficult decision.

Until that decision is made, cannabis growers across Oregon will be allowed to sell cannabis contaminated with Aspergillus, but they will be faced with the looming threat of another
crackdown in the coming months if the court rules in favor of Aspergillus testing. For now, the future of the Oregon cannabis industry remains uncertain.