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WINTER LLP Update - 2019 BCC Testing Requirements

Dear All,

It has come to our attention that there may be some confusion about the testing requirements for cannabis and cannabis products starting in 2019. We have summarized the testing requirements below:

INTRODUCTION

The current and effective laboratory testing requirements for cannabis and cannabis products can be found in Section 5715 of California Code of Regulations, Title 16, Division 42 “Phase-In of Required Laboratory Testing” (Please see attached). There are three phases of required testing for products, which are outlined in further detail below. Importantly, the testing requirements for a cannabis product depend on its date of harvest or manufacture, not sale.

TESTING REQUIREMENTS

A. Phase 1. All cannabis harvested on or after January 1, 2018, and all cannabis products manufactured on or after January 1, 2018, shall be tested for the following analytes, if applicable:

  1. Cannabinoids
  2. Moisture content
  3. Category II Residual Solvents and Processing Chemicals
  4. Category I Residual Pesticides
  5. Microbial Impurities
  6. Homogeneity

B. Phase 2. All cannabis harvested on or after July 1, 2018, and all cannabis products manufactured on or after July 1, 2018, shall be tested for the following analytes, if applicable:

  1. Cannabinoids
  2. Moisture content
  3. Category II Residual Solvents and Processing Chemicals
  4. Category I Residual Pesticides
  5. Microbial Impurities
  6. Homogeneity
  7. Category I Residual Solvents and Processing Chemicals
  8. Category II Residual Pesticides
  9. Foreign Material

C. Phase 3. All cannabis harvested on or after December 31, 2018, and all cannabis products manufactured on or December 31, 2018, shall be tested for the following analytes, if applicable:

  1. Cannabinoids
  2. Moisture content
  3. Category II Residual Solvents and Processing Chemicals
  4. Category I Residual Pesticides
  5. Microbial Impurities
  6. Homogeneity
  7. Category I Residual Solvents and Processing Chemicals
  8. Category II Residual Pesticides
  9. Foreign Material
  10. Terpenoids
  11. Mycotoxins
  12. Heavy Metals
  13. Water Activity

SALE OF TESTED PRODUCTS

Once the cannabis products have been tested pursuant to their date of harvest or manufacture, they may be released for retail sale. The regulations do not state that starting January 1, 2019, all products that are sold in stores must have passed Phase 3 testing. It is only required that products harvested or manufactured after December 31, 2018 must pass Phase 3 testing. In other words, pursuant to Section 5715, the date that the product is released for retail sale or sold does not matter with respect to testing requirements; the only date that matters is the date of harvest or manufacture.

The “Transition Period” requirements that were released earlier this year were enacted to prevent untested cannabis products from being sold after July 1, 2018. However, there is no such sale restriction in 2019 that is applicable to products that have been tested pursuant to their dates of harvest or manufacture.

CONCLUSION

Distributors and Retailers must refer to the date of manufacture or harvest of the product in order to determine whether the product has been properly tested. Unless that product was harvested or manufactured after December 31, 2018, Phase 3 testing requirements do not apply to the product. All of the cannabis and cannabis products that were harvested or manufactured prior to December 31, 2018 are only required to undergo the testing requirements outlined in Phase 2 (or Phase 1, if applicable) above.

Please let us know if you have any questions.

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