The California Research Bureau has released a report on pesticides and medical marijuana. The report’s major finding is that the state’s regulatory jurisdiction is unclear due to uncertainty over the legal status of medical marijuana under current law.
The report was commissioned by Assembly member Linda Halderman, M.D. (R-Clovis/Fresno). Halderman has introduced a bill, AB1975, to “state the intent of the Legislature to enact legislation that would require the Department of Pesticide Regulation to develop guidelines to enforce state pesticide regulations on medical marijuana cultivation.” Her office has said she will not push forward this bill in 2012.
EXCERPTS FROM THE REPORT:
To regulate medical marijuana cultivation and safety issues associated with it, a State agency must have jurisdiction over the enforcement of applicable law. As it stands, it is unclear if California law includes medical marijuana as a bona fide agricultural crop. If California does recognize medical marijuana as an agricultural crop, then the authority to regulate any pesticides growers use on it falls under the jurisdiction of California’s Department of Pesticide Regulation (CDPR). Currently, there are no pesticide products registered and labeled for use on marijuana.
Use of an unregistered pesticide on marijuana is a legal violation, and CDPR could confiscate all medical marijuana crops treated illegally with pesticides under California Food and Agricultural Code (CA Food & Ag Code) Section 14628 (a), something that may conflict with California’s Compassionate Use Act of 1996. A critical first step toward addressing regulatory gaps is to define medical marijuana legally:
-Is it an agricultural crop?
-If it is not a crop, then what is it?
-When is it a crop?
-When is it a medical drug?
California Regulation of Medical Marijuana as a Crop
It is unclear if California law includes medical marijuana as a bona fide agricultural crop. If California does recognize medical marijuana as an agricultural crop, then the authority to regulate any pesticides growers use on it falls under the jurisdiction CDPR. Currently, there are no pesticide products registered and labeled for use on marijuana. Use of an unregistered pesticide on marijuana is a violation of CA Food & Ag Section 12973 and the Federal Insecticide Fungicide Rodenticide Act Section 2(ee), which both convey that a pesticide must be used in a manner consistent with its labeling. According to a department contact, CDPR has the authority to enforce pesticide laws and regulations on medical marijuana now, but they would need additional assistance and resources to enforce them; California authorities could confiscate all medical marijuana crops treated illegally with pesticides under CA Food & Ag Section 14628 (a).
Legal Use of Pesticides on Crops
Medical marijuana’s status as a food crop is ambiguous. On the one hand, it may be argued that since people ingest marijuana as edibles as well as smoke it that it qualifies as a food commodity.
CDPR’s residue monitoring program includes only testing produce to ensure food safety. On the other hand, if medical marijuana is a non-food crop, then sampling would only take place in an investigation brought forth by a county agricultural commissioner’s office. Developing a new program for testing non-produce would require significant funding. However, this point is debatable, and some might argue that since there are no programs for non-food crops such as cotton, that another non-food crop would not need this kind of regulatory practice.
The United States EPA (U.S. EPA) must establish a tolerance level for any pesticide used on a raw agricultural commodity or exempt the pesticide from tolerance levels before it may be registered for use. A tolerance level, or maximum residue limit, is the amount of pesticide residue allowed to remain on a food commodity. Once registered, a grower may use the pesticide legally on the specified crop. Agricultural inspectors then test plants to ensure that pesticide residue measures at or below tolerance levels. Currently, since there is no established tolerance level nor an exemption from establishing a tolerance level for any pesticide used on medical marijuana plants, any use of a pesticide is in violation of the federal Food Drug and Cosmetic Act, Section 408(6a). It is unlikely that U.S. EPA will establish a tolerance level for medical marijuana use as long as it is illegal federally.
If the U.S. EPA did establish tolerance levels, then California regulatory departments would need additional resources for collecting and testing medical marijuana for pesticide residue levels and/or for establishing a new program. According to a CDPR source, county agricultural investigators would require police escorts when entering a private home where licensed growers cultivate medical marijuana. Notably, however, the experience in Humboldt county with this type of practice was that When code enforcement began using police escorts, the community response was so strong that the policy was dropped.”