Oregon Appeals Court Orders Stay of Fungus Testing Rule

The Oregon Court of Appeals on Friday suspended the state’s cannabis testing requirements for the fungus aspergillus, Willamette Week reports. The lawsuit was filed in July by the Cannabis Industry Association of Oregon, Southern Oregon Family Farms, and Cannessentials Farm who claimed the testing rules are overreaching and harmful to the industry. 

The new rules took effect on March 1 and since then, many organic cannabis cultivators in the state have failed the aspergillus testing. Cannabis that fails the test is subject to recall. 

State regulators claim that inhalation of the fungus has been shown to be dangerous to immunocompromised people and that “adopting additional rules would increase public health and safety on cannabis items sold to consumers and puts Oregon on the same national standard as other states,” the report says. The Oregon Health Authority (OHA), however, has acknowledged that there’s no proof that cannabis containing aspergillus has sickened any Oregonians. 

“The court has considered the irreparable harm to petitioners in the absence of a stay, petitioners’ likelihood of success on the merits, and the risk of harm to the public is a stay is granted and, in light of those considerations, concludes that a stay of enforcement of the Aspergillus Testing Rule is appropriate in this case.” — Oregon Court of Appeals ruling via Willamette Week 

A spokesperson for the OHA told Willamette Week that the agency is “reviewing the decision and will be discussing next steps in the coming days.” 

Kevin Jacoby, the lawyer representing the cannabis businesses, told Willamette Week that he expects regulators to create new rules that set similar testing requirements but are not subject to the stay.

“Oftentimes they see the writing on the wall and will rather quickly move to rulemaking that will change the rule,” Jacoby told Willamette Week. “Once they change the rule, that would moot the judicial review proceeding regarding the validity of the rule. But new rulemaking would likely take six to eight months.” 

He added that the upcoming outdoor cannabis harvest is “not under threat.”