In Nevada, along with a rapidly growing list of other states, an individual 21 years-old or older can legally buy and consume cannabis through almost every orifice.
A legal Nevada consumer can ignite cannabis flower and inhale the smoke, the most popular method. They can heat cannabis concentrates or flower below the temperature of combustion to vaporize and inhale desired cannabinoids, like THC or CBD and a host of terpenes with associated medical, flavor, and mood influences.
Chocolates, various candies, baked goods, tonics, and tinctures that contain components gleaned from the cannabis plant are a popular consumption form, edibles as they are known. Little-talked about products like hand creams, nasal sprays, and suppositories are also available to Nevada consumers.
Despite the lack of federal guidance, Nevada’s cannabis product testing regime for both medical and adult-use cannabis is arguably the most comprehensive and stringent in the nation. Cannabis testing in Nevada is validated and monitored on an ongoing basis by an independent third-party. All cannabis in Nevada is tested for:
Moisture content, potency analysis, terpene analysis, foreign matter inspection, mycotoxin screening, heavy metal screening, pesticide residue analysis, herbicide screening, growth regulator screening, total yeast and mold, total Enterobacteriaceae, salmonella, pathogenic E. coli, aspergillus fumigatus, aspergillus flavus, aspergillus terreus, aspergillus niger.
According to Kara Cronkhite, Program Health Manager for Nevada Cannabis Compliance Board (CCB), roughly 15 percent of legally grown cannabis does not meet the standard for things like mold or other listed contaminants.
If a sample fails a quality assurance test, the entire production run from which the sample was taken automatically fails. A failed quality assurance test for pesticide residue must be retested by the State Department of Agriculture.
Contamination can ultimately result in the destruction of an entire production run, which may spell millions of dollars in losses, so growers turn to authorized methods of disinfection to meet state standards.
Affected cannabis can be made into an extract, which is less profitable than saleable flower.
In Nevada, ozone gas, radio frequency, sonic waves, and ionizing radiation can also be used to reclaim cannabis that fails a quality assurance test. The goal is to render the cannabis harmless to consumers without destroying or chemically modifying its desired characteristics, from terpene profile to potency, taste.
From March 2017 through March 2019, Nevada cannabis farmers were able to use the RAD Source RS 420 Line of radiation devices to convert quarantined cannabis into useable product. In March 2019, the Nevada Department of Taxation informed RAD Source customers they were not allowed to continue using the RS 420 Line of equipment.
According to court documents, the Department of Taxation concluded that if cannabis were federally legal, marijuana treated with Radio Frequency (RF) or ozone would not need to be approved by the U.S. Food and Drug Administration (FDA) as a food additive. But FDA approval would be necessary for marijuana treated with X-ray ionizing radiation.
State regulators reasoned that the FDA had granted broad approval for RF and ozone-based processes in treating food products but they have only granted limited use of X-ray ionizing radiation for very specific uses.
The state sought FDA assistance to evaluate the safety and efficacy of X-ray ionizing radiation on cannabis, but got no response, which was not unexpected considering cannabis is a federally controlled substance under the Controlled Substances Act.
In April of 2019, the Department of Taxation mandated that RAD Source meet six requirements in order to use ionizing radiation to treat marijuana and marijuana products in Nevada.
The following week, the Department acknowledged that RAD Source had resolved all but one of the six criteria. The outstanding item was certification from the U.S. Food and Drug Administration or a letter of exemption from the FDA requirement. The state held its ground and would not allow the process without some form of federal consent.
RAD Source sued in Clark County District Court. Once again, federal prohibition prevented any FDA or other federal guidance, so the court found in favor of RAD Source.
On July 7, 2020, the court ordered the state to allow the RS 420 machines to return to operation and to “cease and desist from requiring the RS 420 Line to meet the impossible FDA Requirement.”
Should irradiated cannabis be labeled?
On September 21, 2020 federal regulators declared that drugs treated with ionizing radiation need not be labelled with the Radura symbol. Soon after the announcement, RAD Source officially petitioned the Nevada Cannabis Compliance Board to drop the Radura symbol from irradiated cannabis, which RAD Source argues is a drug and not a food.
The FDA requires irradiated foods to be marked with the international symbol for irradiation, the Radura. Bulk foods, such as fruits or vegetables are required to be individually labeled or to have a label next to the sale container. There is no federal irradiation labelling requirement for individual ingredients in multi-ingredient foods.
The CCB convened an online workshop to discuss the labelling issue on January 19, 2021. Joel Schwarz, RAD Source attorney, said the use of ionizing radiation to treat cannabis is safe and effective, and to think otherwise is to misunderstand the science.
“What is happening here is, you are hitting living tissue, which would be the pathogens, microorganisms, and killing them, but you can’t kill that which is already dead, which is the harvested flower. So any concern about radioactivity is just unfounded and based on a misunderstanding of the basic science,” Schwarz said.
Despite the fact that cannabis products are consumed in a wide variety of foods, Schwarz argued cannabis should be treated like a drug.
“So the FDA has specifically rescinded it’s labelling requirement for drugs that are sterilized using ionizing radiation. That is the most analogous situation you’re going to find in the federal regulations, not food regulations,” Schwarz said.
Comments from within the Nevada cannabis industry are mixed.
Will Adler is a lobbyist with Silver State Government Relations and a veteran cannabis issue advocate. He wrote the Cannabis Control Board to encourage the Radura or other appropriate symbol be retained on irradiated cannabis.
“It is not unreasonable to ask that cannabis which has been treated with one of these post-harvest machines be labeled as such to indicate to patients and consumers it required some sort of secondary treatment prior to sale. If one does not do that, the Cannabis Compliance Board is not doing its best to inform consumers of the quality of the product in the cannabis market. At this time, it would be reasonable to have all products which required secondary treatment to provide some notification to the consumer. It may not be the Radura symbol nor the language currently required by NCCR(Nevada cannabis regulations), but possibly some symbol the CCB develops to indicate a needed post-harvest treatment on that flower,” Adler wrote.
NuLeaf is a vertically integrated cannabis production, processing, and retail business with operations in northern and southern Nevada. NuLeaf recommended that the existing policy be amended to distinguish between ionizing and nonionizing radiation and label cannabis accordingly.
“We feel strongly that NCCR 12.065 should be amended to remove notice requirements that cannabis has been treated with radiation when the only radiation the cannabis product has been exposed to is non-ionizing radiation.
“This is consistent with established guidance from the Food and Drug Administration, which only requires notice and the use of the Radura symbol when items have been exposed to ionizing radiation … because exposure to non-ionizing radiation is safe, we believe the current notice requirement contained in NCCR 12.065 is misleading to consumers and does a disservice to the industry.”
Evan Marder is director of cultivation at Fleur Cannabis and wrote the CCB to say the Radura should be retained on packaging.
“As an organic cultivator in Nevada, we work very hard to grow clean and make sure none of our cannabis needs to be treated by any sort of mold remediation process,” Marder wrote. “In 2020, out of 575 lots tested by labs here in Nevada we had a total of 10 failures (passing rate of 98.27 percent). It is, without question, possible to pass the stringent testing requirements in Nevada without having to resort to any sort of mold remediation process. It is unfair to cultivators who employ practices to grow and produce clean cannabis to have fellow cultivators who treat their cannabis with radiation not have to disclose those practices.”
The CCB was scheduled to consider the labelling rule change during its last regularly scheduled meeting on March 23 but deferred the deliberation until their next meeting in April to do more fact-finding.
Brian Bahouth is the editor of the Sierra Nevada Ally. Support his work.