States Are Starting to Certify Organic Cannabis Because the Feds Won't
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Recently, agricultural committee leadership of both the United States Senate and House of Representatives announced they had reached a tentative agreement on the 2018 Farm Bill. If passed in its current form, this legislation will pave the way for industrial hemp and one of its non-psychoactive compounds, cannabidiol (CBD), to become fully legal under federal law. As a result, domestic industrial hemp producers soon could be eligible for organic certification by the United States Department of Agriculture (USDA).
Federal organic certification indicates to consumers that a farmer or processor complies with federal organic regulations, which permits it to lawfully sell, label and otherwise represent that its products are organic. To receive federal organic certification, the products must be overseen by a certifying agent authorized by the USDA’s National Organic Program, not use excluded agricultural methods, such as genetic engineering and ionizing radiation, and use allowed substances.
According to Nathaniel Lewis, a member of the Washington State Department of Agriculture (WSDA) Organic Advisory Board, “USDA organic certification is a marketing program based around strict production standards. These production standards translate into lower pesticide use, carbon sequestration and increasing environmental health.”
However, unlike industrial hemp, federal organic certification of cannabis that contains the psychoactive compound tetrahydrocannabinol, or THC, is unlikely to occur in the near future. As long as this type of cannabis continues to be classified as a Schedule I substance under the Controlled Substances Act (21 U.S.C. §801 et seq.), it will remain ineligible for federal organic certification because it is not considered a crop. Therefore, states where cannabis is legal have begun to create their own substitutes for federal organic certification. For example, the California Department of Food and Agriculture (CDFA) is required to create an “organic” cannabis program by 2021.
In May 2017, Washington Governor Jay Inslee signed a bill sponsored by Republican Senator Ann Rivers that “creates a voluntary program for the certification and regulation of organic marijuana products,” which is likely to begin certifying cannabis according to organic-like standards in early 2019. According to Lewis, the WSDA’s “certified cannabis” program “will mark the first time that cannabis producers will be regulated directly by a state department of agriculture. It will also mark the first time that a state department of agriculture will have authority to regulate marketing claims made on cannabis.”
Both the CDFA’s “OCal” organic cannabis project and the WSDA’s “certified cannabis” program intend to essentially follow federal organic standards. According to Lewis, “Residue testing under WSDA’s ‘certified cannabis’ program will require that any certified cannabis product have test results less than 0.01 parts per million, the typical limit of detection for any multi-residue pesticide screen. This approach will ensure that consumers are not consuming products with harmful chemicals on them. Until additional research is conducted on the safety of residues on cannabis products, this precautionary approach is prudent and appropriate.”
However, others feel a more state-specific approach is desirable. Due to concerns about the amount of electricity used for indoor cannabis cultivation, the Washington SunGrowers Industry Association (WSIA), whose mission is “to support sungrown cannabis by encouraging environmental and economic sustainability through advocacy, education, and research,” has created its own cannabis certification called “Orca Safe.” Citing Denver Department of Public Health and Environment data, which indicate that cannabis businesses consume nearly 4 percent of the electricity in that city, WSIA contends that indoor cannabis cultivation in Washington is harming the environment due to high energy use. According to the Institute for Energy Research, hydroelectric power accounts for more than two thirds of Washington’s production of electricity.
According to Wild Orca, a Washington non-profit organization “dedicated to supporting research, spreading awareness, and collaborating in the mitigation of threats facing endangered killer whales,” consumers should, among other things, “buy as much local and/or organic food as possible“ to create a home that is “orca safe.” However, Wild Orca also mentions concerns about dams that block salmon -- which a certain killer whale “ecotype” almost exclusively eats during the summer months -- from their natal spawning grounds. In WSIA’s view, a WSDA-certified cannabis standard that doesn’t also help curb the amount of electricity cannabis grown indoors consumes would not go far enough.
Despite WSIA’s concern about the amount of electricity used by indoor cannabis cultivation, Lewis remains supportive of the WSDA’s “certified cannabis” program, stating, “I believe this to be a significant step in the direction of legitimizing and mainstreaming cannabis production into American agriculture. It is clearly an agricultural product, despite its inconsistent federal and state classification, and interacting with a state department of agriculture will move the needle for cannabis producers seeking to make cannabis production a legitimate commercial enterprise.”
As demonstrated in Washington, because cannabis containing more than minimal amounts of THC remains illegal under federal law, there are potentially competing policy goals in the development of state-level “organic” certification standards. On the one hand, conformity and ease of adaptation to federal organic certification standards seem to be guiding regulators in at least two states, while on the other hand, at least one cannabis industry association has raised an environmental concern that is at least arguably outside the scope of existing federal guidelines. As California and other states begin to develop “organic” cannabis standards, they and the affected businesses should be prepared to address concerns that may depart from existing federal organic certification requirements.