Book:LIMS Buyer’s Guide for Cannabis Testing Laboratories/Cannabis testing and research: An overview/Regulation and standardization of cannabis testing

1.2 Regulation and standardization of cannabis testing

On October 27, 1970, the Controlled Substances Act put into place five schedules or classifications of drugs that would be regulated in some fashion, and drugs were initially classified into those schedules, followed by annual reviews and updates. Marijuana was initially placed under Schedule I and remains there today. As a Schedule I drug, the federal government is indicating marijuana has:

• "a high potential for abuse";
• "no currently accepted medical use in treatment in the United States"; and
• "a lack of accepted safety for use of the drug or other substance under medical supervision".

Then came the Reorganization Plan No. 2 of 1973, which took existing enforcement entities such as the Bureau of Narcotics and Dangerous Drugs and placed them into a new, unified entity called the Drug Enforcement Administration (DEA). Then President Richard Nixon said of the transition:

The enforcement work could benefit significantly, however, from consolidation of our anti-drug forces under a single unified command. Right now the Federal Government is fighting the war on drug abuse under a distinct handicap, for its efforts are those of a loosely confederated alliance facing a resourceful, elusive, worldwide enemy.

The DEA was given numerous responsibilities, including but not limited to the development of enforcement strategy; investigation and prosecution preparation of suspects violating federal law; regulation of drugs and other controlled substances; and coordination and cooperation with state and local government drug enforcement efforts. Since then the DEA has taken various steps—with guidance from the Food and Drug Administration (FDA)—to regulate and enforce the availability and use of controlled substances such as marijuana. As the decriminalization and legalization efforts of states have increased in past decades, this has brought federal regulation and enforcement conflicts to those states that have decriminalized and legalized, largely due to the federal government's insistence on maintaining marijuana as a Schedule I drug.

Numerous changes in federal policy, as well as a few controversies, have occurred since the Controlled Substance Act and DEA were implemented. This includes:

• 2009's Ogden Memorandum, "intended solely as a guide to the exercise of investigative and prosecutorial discretion" in regards to state-based laws allowing medical cannabis;
• 2011's Cole Memorandum 1, underlining that while the stance of the Ogden Memo still stood, large grow-ops that didn't qualify as "caregivers" had sprung up since, requiring federal enforcement action;
• 2013's Cole Memorandum 2, which sought to reduce the emphasis on the size of the grow-op and increase emphasis on—using a case-by-case basis—"whether the operation is demonstrably in compliance with a strong and effective state regulatory system";
• 2014 and onward's Rohrabacher-Farr/Joyce Amendments, prohibiting the DoJ from spending funds to prevent or enforce against state laws that allow for medical marijuana cultivation, distribution, and use, particularly when those actions are performed consistently with those state laws;
• 2016's DEA denial of a petition to reschedule marijuana out of Schedule I, while recognizing the need for further research and the lack of legal marijuana sources for researchers;
• 2018 Farm Bill, which removed industrial hemp from the Controlled Substance Act's definition of "marijuana" and struck it from Schedule I;
• 2020's House Health Subcommittee meetings, the first of their kind, to discuss cannabis research and cannabis' current scheduling, as well as the problems that come from it; and
• 2020's MORE Act, a continuing effort which would decriminalize "marijuana at the federal level while enabling states to set their regulatory policies without the threat of federal intervention."

At the state level, changing laws and regulation have continued to put pressure on cannabis law at the federal level. As of July 2021, thirty-seven U.S. states and the District of Columbia have put some sort of broad decriminalization or legalization laws for cannabis on the books. In October 1973, Oregon became the first state to enact decriminalization laws for marijuana, imposing a $100 fine for possession of less than an ounce. Eleven other states followed a similar path within five years. The next wave of changes began with the passage of medical marijuana legislation in California—the Compassionate Use Act—in November 1996, followed by similar legislation in Oregon and Alaska in 1998, Maine in 1999, and Colorado, Hawaii, and Nevada in 2000. Other states continued to add decriminalization and medical marijuana laws in the 2000s. But it wasn't until 2012 that Colorado and Washington became the first states to make recreational marijuana legal, followed by Alaska, Oregon, and the District of Columbia in 2014. Colorado, Maine, Massachusetts, and Nevada followed suit in 2016, with Michigan doing the same in 2018.

As shown by Cambron et al. in 2016, dispensaries, possession limits, and interstate ID card acceptance can vary significantly among affected states. California, Colorado, Michigan, Oregon, and Washington led in number of dispensaries; Massachusetts, Oregon, and Washington in maximum possession limits; and Arizona plus five others allowed ID cards from other states. Yet the number of allowed dispensaries can be in the single digits, possession limits can be as low as one ounce, and numerous states still don't honor ID cards from other states.

Then there's the matter of state differences in testing, enforcement, advertising allowances, etc. It helps to turn to professional associations and organizations—who often lead the charge for improved, more relevant standards—to sort through the variances. The Association of Public Health Laboratories (APHL), for example, has published its Guidance for State Medical Cannabis Testing Programs to help sort through the confusing tangle of existing testing laws, where they exist. They exemplify this variation of law in their document:

As with most programs in the United States, every state takes a different approach. For example as of January 2016, New Jersey’s Public Health & Environmental Laboratories only test cannabis plant material. Just across the Hudson, however, New York’s Public Health Laboratory will not be testing any plant material, only cannabis extracts. In addition, the New York Department of Health will provide an oversight role for commercial cannabis laboratories that are licensed by the federal Drug Enforcement Administration (DEA) and approved for testing cannabis products. On the other hand, New Jersey state government does all testing in-house for the medical cannabis program.

This variation in law also largely mirrors the variation found in laboratory testing methods of cannabis and its constituents. Recognizing this variance in standards and methods, state officials from Colorado, New Mexico, Oregon, and Washington teamed up to give a presentation called "State Regulatory Approaches to Cannabis Testing, Operations and Product Logistics" at the July 2016 Cannabis Quality, Strategies and Solutions Summit. That presentation focused on the harmonization of regulatory standards and frameworks across states, as well as discussions of what scientific efforts are required to support those standards and frameworks. Additionally, organizations such as Americans for Safe Access Foundation (ASAF), American Herbal Pharmacopoeia (AHP), American Herbal Products Association (AHPA), Association of Official Agricultural Chemists (AOAC), and the American Oil Chemists' Society (AOCS) have been developing standards, methods, and certifications for analysis, extraction, labeling, and laboratory operations surrounding medical (and recreational) marijuana. More recent efforts from the Foundation of Cannabis Unified Standards (FOCUS), ASTM International, the AOAC's Cannabis Analytical Science Program (CASP), and the National Institute of Standards and Technology (NIST) have, however, furthered attempts to standardize cannabis laboratory testing.