A recent regulation enforcement action against a marijuana testing lab has some producers concerned about the safety of products and the level of scrutiny under which testing labs are placed. One of the state’s top producers is now calling for a total recall on every product that was tested at the lab.
Earlier this month the New Mexico Cannabis Control Division (CCD) published a Notice of Contemplated Action (NCA) that was sent to Bluebonnet Labs that alleged a number of license violations, including failure to maintain equipment, falsifying data and failing to document tests.
Bluebonnet Labs is an analytical testing business that was licensed by the state to determine whether cannabis products are compliant with regulations. It’s one of only six companies that have been granted a license to conduct weed testing in the state.
Now Ultra Health CEO Duke Rodriguez is calling on the CCD to immediately recall all the products that were tested by the lab.
“This was an unlawful licensee operating in broad daylight — fully licensed by the state but without ever having the capacity to perform the lab tests they claimed,” Rodriguez says in an email to The Paper. “To protect the public, a full recall of all products allegedly tested by this lab may be necessary. The stakes are too high for anything less.”
Ben Lewinger, executive director of the New Mexico Cannabis Chamber of Commerce, is calling for a recall of any products that weren’t tested properly. “Compliance on the part of licensed testing labs is the cornerstone of patient and consumer safety for our regulated cannabis industry, so the violations listed in the NCA should be taken very seriously,” says Lewinger. “Any products that are determined to not have gone through the rigorous testing necessary for sale to the public should absolutely be recalled and retested by a lab that has demonstrated full compliance with New Mexico rules and regulations.”
According to the NCA, inspectors went to the lab on November 18 and found improperly maintained equipment and improperly stored cannabis and testing chemicals. These violations are serious enough on their own, as they represent potential threats to public safety, but they were only the beginning.
They also found issues with the labs’ record keeping. Testing samples weren’t documented in the state’s track and trace system, and records of past tests were unavailable. The lab was unable to produce standard operating procedures or training materials for employees and had no proof that employees had received training of any kind.
The lab couldn’t produce any operating manuals for equipment, records of equipment calibration, records of any repairs due to failures and malfunctions of the equipment, certificate of analysis for the facilities reference standards or material safety data sheets for the chemicals used in the testing process.
Inspectors also found that the lab listed the wrong location address on its certificates of analysis, which the CCD categorized as “falsifying required data reporting.” It was also discovered that the lab had changed its testing methods but never submitted an amendment to the CCD.
Shockingly, the NCA confirms reports that some of the samples that were submitted to Bluebonnet’s Albuquerque lab were then sent to the company’s home lab in Dallas, Texas, to be tested.
In a letter to the Regulations and licensing Department (RLD), which oversees the CCD, Ultra Health Chief Legal Officer Kristina Caffrey wrote: “The Cannabis Control Division cannot verify that the tests allegedly done in Texas were actually done. Even if the tests in Texas were actually performed, the Texas lab is not licensed to perform the tests. This is equivalent to the tests not having been performed at all. Essentially, there are untested products on the shelves today.”
That means all of those products that were tested in Texas were done so without compliance to state regulations. It also means that Bluebonnet presumably transported those samples across state lines illegally and brought them to a state that prohibits marijuana possession. If this is true, then lab employees are guilty of breaking a number of state and federal laws.
It’s unclear how many products would be subject to a potential recall if the CCD were to go through with one, but it would likely be a very large number. All licensed producers are required to submit their products for testing before sale. There are over 1,000 active producer licenses in New Mexico, and many of them were clients of Bluebonnet. A recall of all of those products at once could cause immense damage to the industry.
It isn’t clear whether the CCD plans to recall the products. The division says it can’t comment, because it’s still reviewing the case. According to the NCA, Bluebonnet now has the opportunity to request a formal hearing to discuss the violations. If it fails to satisfactorily explain its issues to the CCD at the hearing, it may be fined or have its license suspended or revoked entirely.
Rodriguez says the case illustrates why the state needs higher compliance standards.
“Had a mandatory physical inspection been conducted prior to licensure, many of these violations — including unsafe storage, improper training, and incomplete documentation — could have been prevented,” says Rodriguez. “A robust regulatory framework is not a luxury; it’s a necessity.”
Since last year, the CCD has been calling for an increase in its power to enforce regulations. Legislators are reportedly working on bills that would allow the division to seize suspected illicit cannabis and create a dedicated law enforcement bureau within the RLD to deal with marijuana violations.
“This case underscores the critical need for New Mexico to return to the ‘gold standard’ used by every other state in the country of rigorous pre-licensure inspections and ongoing compliance checks to protect public health and safety,” says Rodriguez. “Without such measures, we leave the door open to rogue operators.” The case is also raising eyebrows because the state awarded Bluebonnet $100,000 in Local Economic Development Act investments in 2022 to fund 17 jobs in New Mexico. Some industry stakeholders are wondering if that money could have gone to a more worthy business.