Colo. regulators can't answer basic pot questions

DENVER — Despite a much-heralded system designed to track every marijuana plant grown and sold, and to independently test samples, Colorado's recreational pot marketplace very much remains "buyer beware," in large part because state regulators can't answer basic questions about the industry they oversee.

State regulators, whose salaries are paid through the fees levied on marijuana growers, processors and retailers, say they've focused more on keeping the industry from running afoul of federal prosecutors. They admit they aren't looking at large amounts of their own data, and acknowledge much of it would be useful to lawmakers and public health experts, as well as the general public.

"There is no playbook to go off of," said Lewis Koski, the state's top marijuana regulator. "I think it is safe to say the world is watching."

Because Colorado regulators refused to make public much of the data it has been collecting for months, USA TODAY purchased nearly $500 worth of marijuana and marijuana-infused foods known as edibles, and then had it independently tested to check for potency and accuracy in labeling.

Our three-month joint investigation with KUSA-TV found that:

• State regulators cannot even say how much marijuana has been grown and sold in the state since Jan. 1, despite creating a high-tech system designed to track the growth and sale of every single pot plant. That system is funded by growers and retailers, with the cost passed on to the consumer.

• The marijuana and edible products being sold to recreational consumers aren't yet being tested for mold, pesticides or other contaminants because state regulators have repeatedly rolled back testing deadlines. Testing for such contaminants is explicitly required by state law. Sellers are required to disclose the kinds of pesticides used in growing marijuana plants, but the testing is meant to check for contamination and to verify exactly what's in the pot.

• Even though some marijuana being sold at Colorado's stores is often twice and sometimes even three times as strong as consumers might expect, regulators don't limit the potency. Instead, those decisions are left entirely up to the buyer.

• The strength of popular marijuana-infused foods known as "edibles" can vary widely. In many cases, independent testing performed on behalf of USA TODAY and KUSA-TV showed the products are significantly weaker than advertised. It's like buying a bottle of whisky and ending up with a wine cooler.

• State regulations have created a system where manufacturers have an incentive to make their products weaker than advertised. That's because the state won't let manufacturers sell over-strength products, but doesn't punish them if their products contain significantly lower amounts than claimed on the label, store owners and lab workers say.

• State regulators cannot — or will not — answer basic questions about the tests they require all marijuana growers and producers to conduct at special state-certified labs.

• Consumers trying to double-check exactly what they're getting cannot use the seven special state-certified labs, and must depend on independent labs that haven't been approved by the state. Scientists in multiple labs say results can vary widely depending on who is doing the testing, and which specific part of a plant or candy gets tested. And while that marijuana is tested for potency, "budtenders" say the results are often unreliable because the growers themselves choose which samples to submit.

• Colorado's marijuana regulators don't conduct an widespread independent testing to confirm results from the seven state-certified labs, and don't require the testing of random samples.

• Many marijuana stores make the testing results available to buyers. Some don't. And all say the results cannot be 100% trusted because there's such wide variation in how the plants are grown and which parts get tested.

"You can't die from pure cannabis, but we're doing all kinds of things to cannabis that's never been done before," said Genifer Murray, the founder and CEO of one of the state's largest marijuana testing labs.

One example: marijuana potency has been steadily rising for decades, according to federal scientists. In 1975, for instance, the average THC level was 0.75%. By 1990, it had risen to 3.82% and then 9.97% in 2000. Last year it rose to 12.55%. Murray's lab recently tested a plant containing 32% THC.

Unlike alcohol or prescription medications, marijuana remains illegal at the federal level. That means the federal scientists who make sure our prescription painkillers meet quality standards or approve the contents of beer have no say in the marijuana marketplace.

In Colorado, regulators have chosen to focus on law-enforcement priorities, rather than broad public health issues, when it comes to analyzing the massive amounts of data they collect. Colorado's marijuana tracking system is the world's largest collection of data about how marijuana is grown, processed, tested and sold.

At least in theory.

Koski's staff said they cannot answer one basic question: How much marijuana has been grown in Colorado this year?

Under state regulations, every commercially grown recreational marijuana plant is tracked with a unique electronic identifier using the same kind of system big-box stores use to manage inventory. The contractor running the system says it has tracked more than 1 million plants since December 2013, and boasts of the system's ability to tell regulators exactly how much marijuana is in any store, at any time.

Colorado basks in the praise the system has garnered, most recently in a Brookings Institution report that called the system "the backbone of Colorado's regulatory structure."

Said the report: "If effective, it helps businesses and regulators guard against shady practices, while helping keep at bay a federal government that is closely watching enforcement and compliance. Members of the industry realize that if inadequate regulation leads to serious public policy problems, public support may plummet. Moreover, the threat of federal intervention — however defined — looms large over the legal marijuana market in Colorado, and that threat induces members of the industry to push for and comply with regulations."

Koski said his staff, most of whom are sworn law enforcement officers, are using the tracking system to identify grow operations where there's an unusually high loss of marijuana between the growing, harvesting and processing steps. He said that's part of his efforts to ensure the industry is following guidelines set out by federal prosecutors and that are intended to keep pot from being diverted to the black market run by criminals and international drug cartels.

Marijuana-store owners were reluctant to speak publicly. Privately, they said any criticism of the state's marijuana enforcers could bring additional scrutiny.

In a statement, owners of The Clinic said, they make all of their testing results publicly available.

"The Clinic abides by all Colorado statutes and utilizes a state licensed testing facility. As such, all test results displayed online are provided by that facility," said Ryan Cook, manager of The Clinic.

Our investigation showed Koski's staff has been using the system to make targeted visits to marijuana stores, comparing the amount of pot the store has inside to what the computer system says it does. In multiple cases, investigators found stores had far more marijuana than they were disclosing, and in some cases were unable to say where the untracked marijuana plants had come from. By withholding plants from the tracking system, store owners can avoid paying taxes on those sales, which could also take place on the black market.

But investigators don't appear to have access to state-level data about the overall legal marketplace. And state lawmakers are displeased that neither they nor the public can that get basic information.

"How do we understand how to fulfill the voters' will under the Constitution and do this well if we don't have basic information about it?" asked Sen. Owen Hill. "We need information. We need transparency; without that we've failed the voters' wishes."

Added Rep. Jonathan Singer: "The way I look at it, we have a police blotter, we should be able to have a pot blotter."

Because the state refused to release any data about marijuana testing, USA TODAY bought 10 samples of marijuana with names like Blue Dream and Golden Goat, and 10 samples of edibles that included chocolate, hard candy and straws filled with a sugar-and-marijuana mix. The samples were tested by an independent lab because the law prohibits state-certified marijuana labs from testing for anyone but the licensed marijuana industry.

Our testing results revealed wide variation in the strength of the marijuana, even when it was sold under the same name. For instance, three samples of what was sold as "Blue Dream," a popular strain known to give a euphoric high tested at 13.54%, 13.63% and 18.73% THC.

Because marijuana strains aren't patented or trademarked, stores can call the strains anything they want. There's no guarantee you're getting what you're buying because growers aren't DNA testing their strains. And federal trademark and patent enforcers don't step into the marijuana marketplace the way they can with knock-off products like cellphone cases or handbags.

The marijuana we bought ranged from 13.18% to 20.64% of THC. Murray said her staff recently tested a strain that was 32% THC. Due to confidentiality rules, she wasn't allowed to say what it was called or who grew it.

Store workers who sold us the marijuana said the strength-testing results have little connection with how the marijuana will affect users. Instead, they said, the kind of strain matters more. And they said the only way to really know how it will affect a user is to use it.

Our testing also revealed wide variation in the marijuana-infused edibles. Most of them were weaker than advertised on the label. One product claimed 50 mg of THC, but only contained 19.22 mg, our testing showed. Another product, a chocolate bar, claimed to contain 80 mg but contained only half that.

Experts we consulted said wide variation is normal, but that the industry appears to be getting better at hitting the mark consistently. State regulators said they couldn't access data that could illustrate that trend.

State regulators also said they were unable to say how many batches of marijuana edibles have ever been rejected because they were too strong. Regulations limit edibles to containing no more than 100 mg of THC in a single package, but the law doesn't require them to actually contain what their label claims. Our test results indicated at least two products were stronger than advertised, but still below the 100 mg threshold.

Pharmaceutical companies are subject to strict federal oversight of their manufacturing processes. Marijuana, which is treated as both a food and a medicine, is not. Colorado has not yet mandated testing for mold, pesticides and other contaminants in marijuana and edibles because there aren't enough labs yet certified to do the work. State officials say they hope to have that testing in place by the end of the year.

Murray, the testing company CEO, said marijuana manufacturers are getting better every day, and joked that the nascent industry ought to be measuring itself in dog years because things are evolving so quickly.

"Consumers want what they paid for. If you buy Vicodin, you want Vicodin, not sugar pills," she said. There will come a day, she said, when marijuana products will be consistent: "You will be able to trust it just like a six-pack of beer."

Koski, the state regulator, said he understands the system may need improvement. He said he's been focused on getting his enforcement arm up and running, so staffers can address the most pressing issues identified by federal prosecutors and state lawmakers. He said at some point his staff will begin reviewing and making public some of the vast trove of information that's being collected every day. He said there's no specific timeline for making those changes.

"We are at the infancy ... as time goes on there are going to be improvements needed in the system," he said.

Washington, the only other state with an active recreational marijuana marketplace, went about things differently. There, state regulators refused to permit sales to begin until the testing protocols were in place. That meant shortages of both marijuana and edibles when sales began.

Alaska and Oregon this fall also legalized recreational marijuana. Oregon's system is based on Washington's. Alaska's is modeled on Colorado's.