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Sept. 12, 2023 |  By: Rebecca Rivas - Missouri Independent

Did recalled Missouri cannabis products pose health risks? Regulators aren’t sure

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By Rebecca Rivas - Missouri Independent

 

Marijuana dispensaries and warehouses across Missouri are holding on to more than 62,000 products in special vaults. 

The state suspects that they were infused with a questionable THC concentrate, or distillate, purchased from a Robertsville-based licensed marijuana manufacturer called Delta Extraction. 

Delta Extraction is fighting to get the Aug. 14 recall overturned — and one of the company’s main arguments is that the products were tested by state-licensed labs and don’t pose a health risk that would require a full recall. 

Delta’s general manager Jack Maritz told the Administrative Hearing Commission on Aug. 14 that the distillate has been distributed throughout the entire state of Missouri for more than a year. 

“We’ve had it spread out to a whole bunch of manufacturers throughout the state, that have all made products… and all gotten those mandatory tested,” Martiz said. “We’ve never heard of a failed test or someone getting sick or anything like that.”

But in the midst of making that argument, Delta revealed it had been importing out-of-state concentrated THC oil made from industrial hemp — which is completely unregulated — and mixing it with a small amount of marijuana concentrate in order to create the product then sold as pure marijuana.

Labs that sign off on the safety of cannabis products in Missouri are not equipped to handle testing on this kind of hemp-marijuana cocktail, said Anthony David, owner and chief operating officer of Green Precision Analytics.

Green Precision is one of the labs that Delta used to test the distillate in question, and David said he had no idea what Delta was doing until the company filed its appeal.

Given that, David said there is no way his lab could determine whether or not the products being sold to Missourians were safe to consume. 

“It’s not one of those things, where all of us are operating like three little monkeys,” David told The Independent. “It’s not a ‘don’t ask, don’t tell’ thing. When you do business with people, you make the assumption that they’re going to be doing business the right way.”

Josh Swider, vice chair of the cannabis and hemp testing working group at the American Council of Independent Laboratories, agrees that Missouri’s mandated testing process is not designed for hemp-derived THC. 

And Missouri is not alone, he told The Independent last month for a story on lab regulations. 

“No regulation out there in any state is set up for synthetically creating chemicals,” Swider said, referring to testing regulations. “They are set up for extraction of cannabinoids — vastly different things.”  

Delta declined comment for this story, citing ongoing litigation. But it has fiercely denied any wrongdoing, both in the company’s lawsuit to stop the recall and the administrative hearing to appeal their license suspension. 

The commission will hold a hearing in the case on Sept. 29.

State regulators accuse Delta Extraction of “inversion,” or bringing in illegal marijuana products from other states and adding it to their own products in order to keep their production numbers up. 

But Delta argues it hasn’t violated the law because it was importing hemp, a federally legal substance.

Both hemp and marijuana belong to the same species, Cannabis sativa, and the two plants look somewhat similar. The defining difference between hemp and marijuana is their psychoactive component: THC.

The term THC usually refers to delta-9 THC, which is the most prominently occurring THC in cannabis.

According to the Centers for Disease Control and Prevention, marijuana refers to all parts of the plant cannabis sativa with more than 0.3% delta-9 THC by dry weight. 

Hemp is any part of the plant containing 0.3% or less THC by dry weight. Hemp tends to have more CBD than marijuana, which is a compound or cannabinoid found in the cannabis plant that is not psychoactive. 

However, CBD can be synthetically converted into other cannabinoids, such as delta-9 THC and THC-A, using a solvent, acid and heat.

When the Farm Bill of 2018 took hemp off the federally controlled substance list, it unintentionally also gave the green light for people to legally do this.

“It’s called isomeric conversion,” David said. “You take another cannabinoid and turn it into something else. The problem with turning one substance into another substance is, generally, there’s some sort of volatile reaction that has to happen for that.”

Because hemp isn’t a controlled substance, no agency in Missouri or in the federal government is monitoring the production of this chemically converted THC from hemp.

And that makes testing it difficult, David said.

“People think that we can just throw anything on these instruments, and it just spits out what’s in there — like it’s some sort of definitive supercomputer,” he said. “That’s not the way these instruments work. We tell the instruments what to look for.”

For these hemp products, the companies must inform labs what chemicals or solvents were used in the conversion process — which could include propane, ethanol or even sulfuric acid.  Otherwise, labs won’t know what to look for. 

“We don’t know if it’s safe because …we’re not actually looking for the solvent that was used,” he said. “Because we only look for the solvents that the state tells us to look for. They tell us to look for like 25 different residual solvents, but the stuff that they use to do isomeric conversion, we don’t look for.”

David said there are “hundreds of thousands of solvents out there.” 

“If you have a nefarious actor,” he said, “if you have someone that is already breaking the law, they’re not telling you about it.” 

Swider agreed. 

“A lot of times they use potentially very dangerous acids to do it,” Swider said. “And no one’s looking at that acid contamination in the final product because it’s not a part of [marijuana testing.]”

Delta is a “white labeling” marijuana manufacturer, Maritz said in his Aug. 14 testimony. This means that cannabis brands contract with the company to make their products using the exact recipes that their customers have come to expect. 

These arrangements are common for out-of-state brands that are not licensed to produce or sell marijuana in Missouri.

When Delta first started making products for the Conte brand in February, Delta was converting CBD oil into THC, and then adding a “small amount” of marijuana concentrate, according to Maritz’s testimony.

But around July 2022, Delta started importing hemp-derived THC-A oil, Maritz said. 

THC-A is not intoxicating unless you heat it up, and then it turns into THC. For example, eating raw marijuana flower won’t produce a high because there’s only a small amount of delta-9 THC but a lot of THC-A. 

As part of the process, Delta Extraction would “decarboxylate” the THC-A oil, or heat it, to get a product that had more than 80% delta-9 THC, according to one of the lab results the state submitted as an exhibit in Delta’s appeal.

From May 4 to July 26, Delta bought almost 1,700 liters of the hemp-derived THC-A product from Arvida Labs in Fort Lauderdale, Florida, another exhibit shows.

It likely meant the company was using a good amount of it to make the distillate in question.

David was surprised at the amount of THC-A oil Delta purchased from Florida. 

“I didn’t even know that it was possible to create THC-A distillate in those amounts, until this case,” he said.

According to the Arvida Labs website, the company uses a “patent pending processes…to modify the chemical structure of CBD” into other cannabinoids.

“Some of these cannabinoids are naturally occurring in small quantities that make it nearly impossible to scale via traditional extraction, distillation, refinement,” the website states.

Because THC isn’t naturally occurring in hemp, it usually requires “a pretty heavy chemical process” to get large amounts of it, said Kim Stuck, CEO of the cannabis and psychedelics compliance firm Allay Consulting and who served as an investigator for Colorado’s regulating agency. 

Stuck told the Independent last month that some of her clients are hemp companies whose owners “love the plant” and have gone through rigorous certification and testing processes to ensure their hemp-derived THC products are safe. However, that’s not the norm in this market, she said, because it’s more of a “cash grab.”

“Every new cannabinoid that’s invented is kind of a hot market,” she said, “and so they get in and they just sell as much as they possibly can. And then when that burns out, they’ll move on to the next cannabinoid, and there could be potentially thousands of derivative cannabinoids in the future that can be sold like this.”