It apparently costs $650 per day to be allowed (by the LCB) to continue operations after being charged with pesticide-violations.
The mission of the LCB is to “Promote public safety and trust through fair administration and enforcement of liquor, cannabis, tobacco, and vapor laws.” This post highlights one way in which that Agency is consistently and egregiously failing Washington consumers and, thereby, failing to achieve their mission objectives.
This aspect of the LCB’s failure to protect Washingtonians is summed up, succinctly, in the fact that there is only one record on file (through Dec of 2017) in which the LCB has caused pesticide-tainted product to be destroyed or recalled from the market. There are also precisely zero times that the LCB has mandated a product recall within the cannabis market they regulate. I became aware of this as I waited for the LCB response to an earlier suggestion I made on HI-Blog that the product tested by a certain lab appeared to represent a higher risk to the public and presented an immediate risk to public safety and health.
In the first 3 1/2 years of Washington’s State-legal cannabis market, LCB enforcement personnel conducted about 5,000 site visits (premises checks, in LCB parlance) to marijuana wholesale businesses. One result was that farmers were accused of being in violation of “pesticide” rules approximately 44 times. Six of those accusations appear to have taken the form of Warning letters.
For the remaining 38 cases, accusation took the form of Administrative Notices of Violation (AVN) that, specifically, accused the farms of “Using unauthorized pesticides, soil amendments, fertilizers, other crop production aids.” Such violations could involve either the use of unauthorized crop production aids and/or the use of authorized crop production aids inappropriately (or at levels that exceed allowable action levels). These are extremely serious violations, as the use of “unauthorized crop production aids” has a tendency to poison consumers of such products. Such violations tend to compromise public safety (and health).
This article describes the resolution of these 38 AVNs.
Three of them do not seem to have reached any status other than “Escalation”. No fines or suspensions or destructions or recalls or cancellations-of-license seem to have been applied. These three cases show a pattern of having the initial AVN challenged and escalated … often to a level that includes informal hearings, administrative hearings, and involvement of the office of the State Attorney General. The affected businesses appear to be conducting business as usual while things escalate.
For the remaining 35 cases, some sort of penalty was applied (typically a fine and temporary suspension).
In addition, the Board of the LCB appears to have directly intervened in approximately 15 of these 35 cases. When the Board intervened, the results were as follows:
I am not completely sure why fines would be INCREASED as a result of intervention by the Board, but it appears, in cross-referencing data sources that such increases occurred in lieu of the farm having to suspend operations for the suggested suspension duration of 10 days. This means that the cost for a pesticide-using farm to continue using inappropriate pesticides and/or to use pesticides inappropriately and/or to continue to grow and harvest and process and sell product on which possibly inappropriate pesticides were used possibly inappropriately is, taken as a median, $650 per day. Pay to play. Pay to play with poisons. Lawyers can be amazing, at times.
In contrast to the Board of the LCB showing their willingness to allow the continued production of pesticide-tainted product for a fee amounting to just over $27 per hour, not a single LCB-ordered product recall resulted from any of the pesticide-related infractions Not a single one.
To be completely transparent, there are 5 occasions listed on the LCB website in which wholesalers voluntarily chose to recall some (or all) of their product from retailer’s shelves. It would appear that each of these 5 voluntary recalls was associated (in part) with pesticide issues.
In one case, the farm in question had little history of sales and has had very little indication of sales since their recall. In another case, there was a noticeable fall-off in sales for the farm for approximately three months following their recall.
In two of the cases where farms voluntarily recalled product, there appears to have been no noticeable disruption in their subsequent levels of sales.
In one instance, the farm was subsequently ordered to cease operations (they had their license cancelled). This farm had a history of selling it’s (presumably pesticide-laden) product primarily to retail. In the month after the suspension of their license was ordered, they sold over $100,000 of product to another wholesaler. That struck me as odd, given that they had been told to cease operations by the LCB. My interpretation of this was that the LCB allowed them to sell their remaining stock and/or inventory to another farm or wholesaler for continued production and/or processing (and, subsequently, for sale to the public).
Sweet deal. The same LCB that has, in almost 4 years not ordered a single product recall allows a farm charged with all kinds of violations (including a pesticide violation) to sell off their inventory, in spite of having their license cancelled.
I don’t mean to get technical, but that seems like diversion (or, at least, illegal sales) to me.
Does anyone else see something wrong with the picture painted above?
To recap: As of the end of 2017, there have been about 5,000 site visits over 3+ years to the 1,170 licensed state-legal cannabis farms. Over the course of those visits, 44 “infractions” regarding the inappropriate use of “crop production aids” were noted. That implies that only 1 in 114 times is there evidence of the inappropriate use of crop production aids (or about 0.88% of the time).
Either regulated farmers are very good about using crop production aids, or the LCB’s attention is not focused on this problem (much like “bugs” in a traceability system … if one does not look for them, one has plausible deniability). Farms are 7 times more likely to be cited for issues in their use of traceability. They are 5 times more likely to be cited for issues with their security / camera systems, .They are also more likely to be cited for violating a Board-approved operating plan, improper record-keeping, and true party of interest violations.
With over 1,000 farms growing cannabis in the regulated system (with some active for over 3 years), 38 penalized violations seems a small number, and is suggestive that inappropriate pesticide usage is not as common as generally believed. An alternate narrative consistent with this low rate of pesticide citations is that the poisoning of cannabis consumers is not an enforcement priority for the rule enforcement arm of the LCB.
One would hope that this is not the case, as testing for pesticides IS NOT REQUIRED for any product either than that which seeks to be classified as “Certified Medical Grade”, per DOH guidelines.
At about this time last year, the LCB initiated a program in conjunction with the Dept of Agriculture in which products were bought at retail and tested for pesticides at the AG lab in Yakima. I have yet to see summary results of this testing made public, but – per the original scope of the project, it would be expected that over 300 such samples will now have been tested.
I wonder if the pesticide failure rates of those tests will be consistent with the 0.88% rate at which LCB on-site farm visits turned up sufficient evidence of the inappropriate use of “crop production aids” to issue either a warning or an AVN?
I eagerly await the summary results from that program, as my efforts to access the results in a useful way have, thusfar, been unsuccessful. (*Author’s note – check out the link I posted in the comments section of this post for a summary of the LCB/AG work that addresses this question). The fact that we have heard little of the results of this effort in the media or from the LCB is odd. Perhaps those results do not fit the narrative that the LCB would have us believe – namely that they are living up to their Vision, Mission, Goals and Values and that the cannabis being sold in regulated stores across non-prohibitionist areas of the state is safe for human consumption.
Perhaps the LCB is concerned that informed public awareness of the lack of competent and effective regulatory oversight of state-regulated cannabis might compromise future tax revenue and promote a supposedly dead unregulated market?
I have appended the LCB’s Vision, Mission, Goals and Values below for your reference, with a Pass/Fail grade associated with each.
The grading is mine and is, in part, a distillation of my observations of the LCB’s behavior over the past three years. I have met many good people that work in that agency who appear to conduct themselves in accordance with this written framework. Very few of them are in senior leadership roles. My grades reflect my overall judgement of how the agency acts and communicates externally and observations regarding what appears to be a largely dysfunctional internal culture. Some of that has come from their public communications, but much more has come from my examination of the data and other materials that they (with thanks to our “Sunshine Act”) make available.
I truly believe that the failure of the LCB to live up to their “goals” is largely the result of them having a virtually non-functional Board overseeing a grossly deficient senior management team which lets it’s needs and desires stand in the way of the fair administration and enforcement of their mandate. Since I-502 was passed, has anyone seen, for example, a Board member vote in the negative on a proposal put forward by staff?
Perhaps the Governor might exercise a bit more care in choosing future members of the Liquor and Cannabis Board.
Perhaps the Legislature might exercise a bit more care when granting the LCB the “authority and discretion” to implement regulations as they see fit.
Perhaps the LCB will begin adopting more honesty (rather than semantic approximations thereof) in their communications and dealings with both the public and our Legislature.
Perhaps pigs will fly (in something other than black helicopters).
Until then …. Enjoy your regulated cannabis. It is safe. The LCB has told us so.