Commonwealth Court strikes down two-lab requirement for medical marijuana

Listen to this article

The state’s Commonwealth Court ruled June 29 by a 5-2 majority that Pennsylvania‘s Department of Health went beyond its authority when it required that medical marijuana providers test their products at two separate laboratories, one at each phase.

The decision is a victory for the plaintiffs, a group of medical marijuana growers/processors and a lab who had filed suit against the health department in early March. In their last-minute filing to block the two-lab rule, the plaintiffs argued that it would cause chaos in the existing system, effectively freezing the production and sale of medical cannabis, creating shortages and price increases.

One of the reasons that has been given by the state to defend the new rule – mandating different labs at the harvesting and final stages – is that it would better protect the public from contaminants.

However, the appellate court agreed with the plaintiffs that the state’s Medical Marijuana Act only requires testing by “one or more” labs.

The regulation was supposed to go into effect March 4, but was not enforced while the litigation was pending. Oral arguments took place in May.

Plaintiffs in the case are Green Analytics North LLC, doing business as Steep Hill PA; Hanging Gardens LLC; Pennsylvania Medical Solutions LLC; Curaleaf PA LLC; AES Compassionate Care LLC; Standard Farms LLC; and Parea BioSciences LLC.

Cannabis Law PA’s Judith Cassel, one of the plaintiffs’ attorneys, explained in an email that the Pennsylvania Legislature amended the Medical Marijuana Act in the summer of 2021 to allow growers/processors to use “one or more” labs to complete testing at the two phases of manufacturing: harvest (when the plant is cut down) and final products (right before the growers/processors sell the medical marijuana products to dispensaries).

The Department of Health’s Office of Medical Marijuana then promulgated regulations (after the Legislature amended the act) mandating that growers/processors use separate labs for testing at the two phases, she said.

“Cannabis Law PA successfully argued that the MMJ (medical marijuana) Office’s regulation violated the Legislature’s amendment to the act,” Cassel said, and got the court to draft a permanent injunction against the two-lab regulation.

“We are thrilled with this decision and think that this decision is a win for the industry,” Cassel wrote. Growers/processors make a myriad of products that require specific testing. Allowing them “to make the choice on which lab should test which product ensures safer medicine for patients. The MMJ Office is still enabled to do independent testing of any product at any time and indeed the MMJ Office should do its own independent investigation, review of data and testing to ensure that all grower(s)/processors and labs are correctly and accurately testing all products.”

A representative for the Department of Health did not respond to a request for comment on the decision.

Paula Wolf is a freelance writer