By: Taylor Farmer
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
It’s no secret that Arkansas has a thriving medical marijuana market. Collectively, almost 90,000 active patients spent more than $275 million in the doctor-prescribed plant in 2022, earning the state more than $30 million in taxes and smashing sales records. If it sometimes feels like there are medical marijuana dispensaries on every corner, that’s because there are – “Greenlight Dispensary” and “Canna Nation,” located in Little Rock, are a mere two minutes’ drive apart.
What most Arkansans don’t know, however, is that the state – much like every other state that has legalized the drug – has a problem with lab shopping, and it seems as though nobody is doing anything about it.
What is lab shopping, and why is it such a big deal? To understand that, one first has to understand potency. Potency absolutely drives the medical marijuana industry as we know it today. It’s measured by how much THC is in the product, and the higher that number becomes, so too does consumer demand – and producer profit. In such an environment, it’s no wonder that the entities growing and processing the plant for medical consumption feel compelled to report the highest THC levels possible if they want to keep up with their competitors.
All of this makes THC testing something of monumental importance. The process sounds simple and unbiased: producers hand their samples over to labs, which test for THC and potential contaminants, like pesticides, before turning those test results over to the health department and ultimately the producer. In an ideal world, it would be simple and unbiased – but herein lies the problem of lab shopping.
Producers have total freedom to “shop” their products around for testing at any of the various in-state labs. Once producers find a lab that seems to report higher levels of THC, the producers are free to choose the higher-reporting lab every time. Through this process, the market demand for higher potency products starts to shift from the producer to the lab, and the labs quickly become pressured to report higher THC content than their competition. Third-party test results confirm that ‘preferred labs’ really are responding to this pressure by inflating potencies, even here in Arkansas.
Inflated THC can have real consequences for medical patients relying on the numbers reported by labs – numbers they should have no reason not to trust. If a patient believes they can handle a more potent product than they actually can, for example, they run the risk of consuming too much the next time and facing a set of negative side effects ranging from dizziness and increased heart rate to vomiting and disorientation. This is in addition to unfair sticker shock, as patients are paying more to get a product that is higher in potency than the product they are actually being sold.
In Arkansas, the medical marijuana program is regulated by two agencies: the Alcoholic Beverage Control Division (“ABC”) and the Arkansas Department of Health (“ADH”). Importantly, neither one regulates labs – or their usage by producers. When asked about this wide regulatory gap, an ABC spokesperson denied agency responsibility and implicated the ADH. The ADH, for their part, said that their duty stops at ensuring lab accreditation.
Lab shopping is an egregious issue in every program across the country, so it is not particularly shocking that neither the ABC nor the ADH wants to claim responsibility for solving it. However, these agencies would do well to observe the progress of other states – particularly our northern neighbor, Missouri – a state evidently less hesitant to address the problem than this state has been.
Missouri has decided to try its hand at resolving the issue: it will allow its health department to implement an extra layer of “round robin” product testing in addition to the testing already done. Almost as often as each month, the state will instruct accredited labs to “switch” with other labs and double-check the first lab’s test results. If every lab is testing accurately, the results should be similar. If a lab is inflating potency, the “round robin” method would put the state one step closer to catching on.
No, the method may not be perfect – but until medical marijuana is made legal on the federal level, and the door opens for federal testing standards, experts say that the “round robin” method is the state’s best-equipped tool to deal with lab shopping. Indeed, implementing some method of ensuring the accuracy of test results – and ensuring that Arkansans can rely on the state-run medical program to make accurate representations as to the contents of medicine they consume – should be a bare minimum function for any government entity with authority to do so.