After a recent exposé by NY Cannabis Insider found conflicts between the actual and advertised levels of THC in several strains of legal recreational cannabis available for sale, the state of New York has changed testing guidelines – seemingly in an attempt to ward off future litigation based on false marketing of THC levels as seen in other states.

With licensed growers failing to meet testing requirements as the deadline to launch retail sales approached last fall, the Office of Cannabis Management (OCM) relaxed its guidelines and implemented line testing so growers could more quickly test and market their products. Line testing is a process that allowed flowers and pre-rolls to go to market more quickly with a label of “anticipated potency” rather than actual potency. Anticipated potency is a number based on the midpoint of the seed’s expected range of THC output, as opposed to the cannabis flower’s, and can be inaccurate.

Line testing was temporarily implemented to speed up the process of certifying dispensaries so legal cannabis could be available to the public by the end of 2022. Growers and processors were happy to designate their products with the higher THC levels permitted by line testing because higher strains sell better.

While the state considered it a temporary measure, it did not set a deadline for line testing until the new regulations came out earlier this month, following NY Cannabis Insider’s plan to test eight of the highest-potency strains of legal cannabis in a state-certified laboratory. The publication found “the majority of the best-selling weed available in the nascent marketplace contained drastically lower THC than advertised.” Testing found as much as a 47% difference between the THC percentage listed on the product and the actual percentage of THC contained in a particular strain.

OCM responded by updating standards and protocols and eliminating the use of line testing for flowers and pre-rolls.

According to NY Cannabis Insider, the Office of Cannabis Management notified state-licensed growers and processors that those with line testing currently in progress would be allowed to proceed, and it would not pull the remaining line-tested flower or pre-roll products from the state’s four operating dispensaries.
Even unintentionally misleading consumers can come with a price. In other places, such as California, Arkansas and Canada, class-action lawsuits have been filed over mislabeled THC.

Whether New York will see similar suits is yet to be seen.

Attorneys with Harris Beach’s Cannabis Industry Team will continue to monitor the legal and regulatory landscape and provide updates. Should you have questions about this or related matters, please reach out to William M. X. Wolfe at (315) 214-2059 and, or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.