It was a public gathering in the middle of the holidays where Marijuana was discussed. When this happened, the rules proposed by the state Department of Public Health and Human Services had already been suspended.

And the way the proposed but suspended rules were overturned by the legislature’s Interim Committee via email only seemed suspicious – no one had witnessed the vote or even knew about it.

The irregular path of proposed regulations that would govern how legalized recreational and medical marijuana is tested in Montana shows some of the tension that is building as the marijuana industry takes root in the treasure state.

For example, the Department of Revenue controls most of the marijuana industry in Montana. However, the Montana Department of Public Health and Human Services oversees the laboratory tests used by farmers and retailers.

Some retailers who spoke to the Daily Montanan said the change introduced by the 2021 Legislature didn’t change the rules so much as change the state’s attitude. Retailers and farmers who spoke to the Daily Montanan did not want to be named for fear of retaliation and government retribution, illustrating another part of the tension in the growing industry.

Retailers said that under the DPHHS, regulators were less strict and more concerned about supporting the industry. Meanwhile, the transition to the Department of Revenue means that inspectors and regulators are looking for any violations – no matter how minor – and issuing fines. They say the model is understandable as the Department of Revenue is responsible for collecting taxes as well as regulating the alcohol industry.

Another turning point in the industry has to do with laboratory testing. There are currently four labs in the state that perform the required tests for marijuana, the marijuana that is legally grown and cultivated in the state. These tests are often tested for mold and potency. These labs are still under DPHHS which is a sticking point for some within the industry because some say it doesn’t make sense for the industry to be regulated by two separate departments.

So when the DPHHS proposed a set of new rules for testing and potency, it was rebuffed by the cannabis industry, which said the state was over-regulating marijuana. However, the mechanics of temporarily suspending the same rules also caused bewilderment.

procedural oddity

DPHHS has proposed new rules in the state’s official administrative publication, which is designed to publish and notify the public of rules that help enforce laws made by the legislature. From there, a public hearing was scheduled, which just happened in the week between Christmas and New Year. Both the publication of the rules and the public comment period and public hearings are required by state law, unless absolutely necessary.

DPHHS spokesman John Ebelt spoke about the steps taken by the department to implement the rule:

DPHHS has been working for several months to draft and refine the text of the proposed rules. Once this drafting process was completed, the department filed a proposed rulemaking notice as required by the Montana Administrative Procedures Act. The DPHHS also sent a separate notice of the proposed rulemaking to each member of the CFHHS interim committee. In addition to public hearings, a written public opinion was received within 28 days. The rulemaking timeline was consistent with the requirements of Montana law and provided members of the public with full opportunity to participate in the rulemaking process.

All state departments are controlled by temporary legislative committees that meet for about 18 months when the Legislative Assembly is not in session, a kind of legislative test of the administration’s power.

However, under the Montana Administrative Procedures Act, an interim committee that does not meet before a rule is put into effect can informally object to a rule that suspends it for up to six months. The legislature’s staff attorneys said this should give either the interim committee or the legislature enough time to meet and review the rules.

An informal objection to a rule does not require a formal vote or meeting and can be done via email, meaning lawmakers can lift the rule without any meeting or vote without public notice.

In this particular case, the interim committee overseeing compliance with this rule was the Committee on Children’s Health, Families and Human Services, which last met in August.

Interim committee chairman Ed Staffman, D-Bozeman, told the Daily Montanan that committee members applied the rule because DPHHS proposed the rule so late this year and committee members were concerned.

Staffman said the comments about the high cost of marijuana lab tests worried the committee members, and so they decided to slow down the process, effectively taking the matter to the legislature, which is currently in session.

“The industry has come into effect, and they have said that these rules create great difficulties, and some may even face bankruptcy,” he said.

This gave enough committee members, Democrats and Republicans alike, an excuse to slow down the process and possibly tackle it during the legislative session.

A request for public records shows that six interim committee members objected – Staffman, Rep. Jennifer Carlson, Rep. R. Belgrade, Mary Caferro, D. Helena, Sen. Mary McNally, D. Billings, Sen. Jan Gross, D. Billings, member of the House of Representatives. Danny Tenenbaum, D-Missoula.

They all objected by email.

However, the interim committee filed its formal objections on December 28 – the day before – effectively suspending the rule. The Department of Public Health and Human Services told attendees at the public hearing that the rule was on hold but required comment as the public meeting was published and scheduled, further adding to the confusion.

The combination of two different departments, new rules proposed by the administration, and timelines have led to criticism that the state’s marijuana policy is inconsistent, unfocused, or punitive.

Lab problems

Even though the rules proposed by the DPHHS had already been put on hold before the first public comments were received, the marijuana industry has weighed in on the rules, leaving both positive and negative comments.

But none of the speakers at the 70-minute hearing supported the measure.

Pepper Peterson, CEO of the Montana Cannabis Guild, said it was “inappropriate” for DPHHS to propose rules for when labs should be taken over by the Department of Revenue.

One of the biggest concerns raised by retailers and cultivators has been additional testing of marijuana products that have already been tested. For example, under the new rules, marijuana used in “pre-rolls” or joints will need to be tested again after it’s in cigarette form.

Additional testing, as well as more packaging and labeling, will drive up costs exponentially and force many to rent additional space for management, separate from retail space, retailers say.

Others said the bill would simply help labs become more profitable, but would not make products safer.

“Most of these rules are overly redundant,” said Adam Reynolds of Collective Elevation. “The department needs to demonstrate a real need for them.”

Anthony Sauer of Green Bee Billings said some of the department’s proposed rules remain unclear. This led to a conversation about moisture levels in dry foods and THC content.

“I’m not sure what they’re trying to do here,” he said.

Others have argued that the new proposed rules were nothing more than a lab takeover.

“This is money laundering by laboratories. They are not a health and safety tool,” said Erika Siate of Stinkblossom.

She said the cost of running a lab in Montana is one of the most expensive in the US, and the new rules would almost quadruple the cost of testing.

Garden Mother’s Katrina Farnum said the rules and packaging and labeling changes alone cost the business thousands of dollars, but didn’t really improve safety or business.

“Why do we fix what isn’t broken?” she asked.

Erin Bolster of Tamarack Cannabis in the Flathead said most marijuana suppliers in the state started their business with medical clients and now have to compete with either large marijuana dealers or street drug dealers.

“Every time you make rules, you have to ask: at what cost and for what purpose?” he said. “Most of us got into (the industry) because we wanted to help people.”

Health problems

While many retailers and cultivators expressed concern about the additional rules, some of which seemed to make the process more difficult, others were more ambivalent about the rules. For example, Doug Felt, administrator of Uncle Bucks, said he shared the sentiment of many colleagues about over-regulation, but parted ways with them when it came to things like heavy metal testing, part of the new requirements that have been temporarily put on hold.

“I don’t believe we can have an industry that can be taken seriously if we’re not prepared to take public health seriously,” he said. “And heavy metals are the marijuana industry’s dirty little secret.”

Indeed, he said he bought samples from other suppliers in Montana and some of them tested positive.

Meanwhile, national reports on the budding US marijuana industry show that the accuracy of THC concentrations is also a concern.

For example, Lester Black of Fivethirtyeight.com reported that several states have altered or altered marijuana efficacy results.

Meanwhile, California government officials had to take over some of the testing after it emerged that labs had been forced to report almost unbelievably high levels of THC in a lab shopping scheme.

In October, a similar problem arose in Nevada.

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