The cannabis industry in New Jersey is undergoing a transformation, with an increased emphasis on safety, transparency, and quality assurance. During its February 18th public meeting, the New Jersey Cannabis Regulatory Commission (“CRC”) released the full, updated cannabis lab testing guidance (the “Testing Guidance”), which provides further clarification to existing regulations to ensure consumer safety and boost public confidence in cannabis products. These measures come in response to mounting concerns about contamination, including mold, pesticides, heavy metals, and the reliability of potency claims, especially in light of the June 29, 2024, recall of various Green Joy products.
A recent study by the Safe Leaf Society underscores these concerns, revealing that legal cannabis products in New Jersey contained significantly higher levels of yeast, mold, and bacteria than allowed while also being far less potent than advertised. The organization purchased 25 pre-rolled joints from licensed dispensaries and tested them, finding that seven exceeded microbial contamination limits, with two nearly five times over the legal cap. Potency tests on eight joints further exposed THC levels well beyond the allowable 10% discrepancy, with one joint containing just half the advertised potency.
These findings raise serious questions about the effectiveness of cannabis testing labs and overall consumer safety. In response, the CRC launched an investigation and is considering establishing a “reference laboratory” to enhance oversight. Advocates warn that mislabeled cannabis poses risks similar to pharmacies dispensing incorrect medications, emphasizing the urgent need for improved regulatory enforcement.
Waiver
In addition to the Testing Guidance, the CRC announced a temporary regulatory waiver aimed at improving cannabis testing standards and product safety. The waiver specifically affects certain sample collection and chain-of-custody requirements under N.J.A.C. 17:30-19.3(b)(4)-(6). By changing these rules, testing laboratories can now apply more precise and accurate standards, ultimately leading to safer cannabis products for consumers. However, only licensed testing laboratories are authorized to operate under this waiver, and they must adhere to the CRC’s Testing Guidance. Testing laboratories have until Wednesday, March 19, 2025, to implement sampling changes and until midnight on Friday, May 23, 2025, for initial and stability testing changes according to the Testing Guidance requirements and require comprehensive testing for several contaminants, including mold, pesticides, heavy metals, and residual solvents.
Key Testing Guidance Recommendations
The Testing Guidance outlines several essential testing categories, including checks for contaminants such as foreign matter, pesticides, microbial contamination, mycotoxins, heavy metals, and residual solvents. Cannabis products must be screened for dirt, mold, insect fragments, and other impurities. Additionally, vape oils and cannabis concentrates require testing for residual solvents, such as butane and ethanol, to ensure consumer safety.
To improve testing consistency, the Testing Guidance recommends standardizing methods for measuring total bacteria and mold counts, as well as controlling drying temperature ranges. These updates will help laboratories produce more accurate results and ensure that consumers receive high-quality cannabis products.
- Prohibition on “Lab Shopping”
One of the critical points in the Testing Guidance is the emphasis on preventing “lab shopping,” a practice where cannabis businesses seek out labs that provide more favorable test results. The CRC recommends that once a laboratory begins sample collections, the cannabis business must continue using the same lab for all testing. Any changes to labs, testing technology, or protocols should be reported to the CRC for approval. Additionally, if a contract is breached, both the testing laboratory and the cannabis business must notify the CRC within 72 hours.
- Recommendations for Foreign Material Inspections
The Testing Guidance reinforces the importance of visual inspections for foreign contaminants. If mold, mildew, soil, sand, or dirt exceed 10% of the total sample area, the sample is considered unsafe. Similarly, the presence of more than one insect fragment, a single hair, or mammalian excreta per 3 grams of product indicates contamination.
- Microbial and Chemical Safety Measures
Cannabis products should undergo microbial contamination testing, measuring bacteria and other harmful microorganisms in Colony Forming Units (CFU/g). The Testing Guidance highlights the importance of testing for bacteria, pesticides, fungicides, mycotoxins, and chemical residues. Inhalable cannabis products, such as vape oils, should also be tested for residual solvents and additives like Vitamin E acetate, which has been linked to severe lung illnesses.
- Guidance for Heavy Metals and Batch Size Testing
To ensure cannabis products are free from toxic heavy metals, the Testing Guidance recommends testing for arsenic, cadmium, chromium, lead, and mercury. If a sample fails, labs should follow proper verification procedures before determining final results. The CRC also provides recommendations for batch size testing, suggesting that 30 samples be taken per 33.7 pounds of cannabis. These samples should be collected from different levels within storage containers to ensure accurate representation of the product.
- Remediation of Cannabis Products
A controversial aspect of the Testing Guidance is the allowance of remediation, a process where moldy cannabis undergoes radiation treatment to help eliminate contaminants. If a product is remediated, it must undergo additional testing before being approved for sale. Laboratories are encouraged to retain failed samples for at least 30 days before disposal.
- Testing Procedures and Labeling Recommendations
The Testing Guidance emphasizes proper sample collection methods to ensure accurate test results. Laboratory employees should be responsible for collecting samples, with a cannabis business employee present to observe but not interfere. Stability testing is also encouraged to monitor cannabinoid degradation and microbial growth over time, helping to ensure accurate expiration dates.
Additionally, the Testing Guidance recommends that cannabis product labels include essential information such as serving size, total number of servings, cannabinoid and terpene profiles, expiration dates, and stability testing results. Retention samples should be stored securely for at least 60 days in case recall testing is required.
- Optional Cannabinoid and Terpene Testing
While not mandatory, the Testing Guidance suggests that cannabis businesses can request and should consider additional testing for cannabinoids and terpenes to provide consumers with more detailed product information. Recommended cannabinoid tests include THC, THCA, CBD, CBDA, CBG, CBGA, and CBN, with optional testing for Delta-8-THC, THCV, CBDV, and CBC. Common terpenes that can be analyzed include Limonene, Myrcene, Pinene, Linalool, and Caryophyllene.
- Moisture Control and Water Testing
To prevent mold growth, the Testing Guidance suggests conducting water activity tests and analyzing moisture content. Drying temperatures should not exceed 105°C to preserve product quality and stability.
Legal Consequences for Non-Compliance
While the Testing Guidance does not introduce new regulations, it reinforces best practices for testing and quality control in the cannabis industry. The CRC may establish a state-run reference laboratory to audit licensed testing facilities and ensure compliance with safety standards. Cannabis businesses that do not follow recommended testing procedures may face penalties or increased scrutiny.
However, the consequences for failing to comply with the Testing Guidance and its already existing regulations are severe and far-reaching. Non-compliance can lead to significant legal repercussions, including financial losses, reputational damage, and in extreme cases, loss of licensure. If a cannabis product fails safety tests, the cannabis business may be forced to remove it from circulation, resulting in financial losses due to product recall, spoilage, and consumer dissatisfaction. For repeat violations, cannabis businesses may face more serious consequences, such as suspension or revocation of their operating licenses, effectively barring them from participating in the legal cannabis market.
Beyond regulatory penalties, cannabis businesses that fail to meet safety standards could face lawsuits if consumers suffer harm due to contaminated products. This exposure to legal action underscores the importance of adhering strictly to cannabis safety regulations. With consumers increasingly aware of the potential risks associated with cannabis consumption, cannabis businesses cannot afford to overlook testing requirements. Transparency, consistency, and rigor in the testing process will be key to avoiding legal liabilities and ensuring consumer safety.
Risk Mitigation and Best Practices for Cannabis Businesses
To minimize the risk of product contamination and mitigate legal liability, cannabis businesses must adopt best practices in line with the existing regulatory framework and become familiarized with the Testing Guidance. This includes sourcing cannabis from reputable growers, establishing internal quality control procedures, and conducting frequent third-party testing. Regular testing not only ensures product safety but also serves as a protective measure against potential lawsuits or regulatory scrutiny.
Maintaining clear records of test results and quality control measures is essential for businesses to demonstrate compliance with state regulations. By keeping thorough documentation, cannabis businesses can prove they have met testing requirements and can provide transparent, verifiable evidence of product safety. Moreover, cannabis businesses should consider investing in industry-specific liability insurance policies. These policies can provide financial protection in the event of a product recall or consumer claims related to failed safety tests. A comprehensive insurance policy will help safeguard businesses from the financial consequences of contamination issues, protecting them from potentially devastating costs. Additionally, cannabis businesses can benefit from consumer education and transparency. By sharing test results and quality control procedures with customers, cannabis companies can build trust and credibility. Clear communication regarding testing outcomes can foster consumer confidence and reduce the likelihood of legal disputes related to product safety.
Response to a Failed Safety Test
In the event of a product failing safety testing, cannabis producers must act swiftly and decisively. The first step is to quarantine the affected batch and identify the source of contamination. This may involve reviewing cultivation methods, processing techniques, or storage practices to pinpoint the cause of the failure. In collaboration with regulatory authorities and third-party testing labs, businesses can identify corrective actions to prevent similar failures in the future.
If necessary, businesses can attempt to remediate contaminated products, such as using radiation or other approved methods to remove contaminants. However, remediation is a controversial process, as some consumers may have concerns about the potential health risks associated with radiation exposure. Remediated products must undergo a second round of testing to ensure they meet safety standards before being re-released to the market.
Cannabis businesses should also develop a structured recall plan that complies with N.J.A.C. 17:30-9.16-17 and outlines clear steps for removing affected products from shelves and notifying consumers and all cannabis businesses that participated in the supply chain. Efficient product recall procedures are essential for minimizing harm to consumers and protecting a cannabis business’s reputation. Transparent communication with the CRC, consumers, and supply chain participants will help cannabis businesses maintain credibility in the face of product failures.
Consumer Protection, Compensation Rights, and Product Liability
New Jersey’s consumer protection laws provide legal recourse for consumers who suffer harm due to contaminated cannabis products. Under these laws, individuals can file claims against producers or dispensaries if they experience adverse health effects after consuming a contaminated product. Cannabis businesses are required to inform customers of product recalls, and failure to do so may result in additional legal liability.
In addition to consumer protection laws, products liability principles apply to cannabis businesses, holding manufacturers, distributors, and retailers accountable for defective or unsafe products. If a cannabis product is contaminated, mislabeled, or otherwise hazardous, affected consumers may pursue legal action under strict liability, negligence, or breach of warranty claims. Cannabis businesses that fail to ensure product safety can face lawsuits for damages, including medical expenses, lost wages, and pain and suffering.
Consumers also have the right to report violations to the CRC, which has the authority to investigate complaints and enforce penalties against cannabis businesses that fail to comply with safety regulations. As consumer awareness of cannabis safety grows, cannabis businesses must be vigilant in ensuring their products meet rigorous safety standards to avoid legal consequences and protect public health.
Conclusion
The Testing Guidance issued by the CRC marks a critical step in strengthening consumer protection and industry accountability. By implementing more rigorous testing standards, reinforcing lab integrity, and introducing measures to prevent contamination and mislabeling, the CRC is working to ensure that cannabis products in the state meet the highest safety and quality standards. However, compliance is not just a regulatory obligation, it is essential for maintaining consumer trust, avoiding legal repercussions, and ensuring the long-term success of the cannabis market in New Jersey.
As the industry evolves, cannabis businesses must adopt proactive risk management and quality assurance strategies, invest in transparent testing procedures, and stay informed about regulatory updates to avoid costly penalties. Consumer safety must remain the priority, as failing to meet these standards could lead to severe financial and legal consequences. By adhering to the Testing Guidance and prioritizing best practices, New Jersey’s cannabis industry can set a national benchmark for safety, transparency, and quality assurance.
