Yes, You Can Now Sell Moldy Weed to Consumers in Oregon – PS, Aspergillus Doesn’t Really Count

September 26, 2023 ·

The Oregon Liquor and Cannabis Commission has approved the sale and transfer of marijuana products that previously tested positive for Aspergillus, a mold variety that has prompted product recalls in various markets.

This regulatory decision now enables the release of 2,500 pounds of cannabis and 65,000 infused pre-roll units, initially withheld due to mold concerns, for distribution through licensed channels, as detailed in a news release.

In May, the Oregon Health Authority implemented fresh regulations for cannabis producers, enforcing a “zero tolerance” policy for products detecting traces of Aspergillus. These rules faced legal opposition from cultivators who contended that the mold’s harm had not been established and that a strict zero-tolerance stance could jeopardize their livelihoods.

In response to this challenge, the Oregon Court of Appeals temporarily suspended the requirement in August.

Lawsuit Over Aspergillus Testing Requirement

The Oregon cannabis industry’s leading trade association has initiated legal action against the state’s cannabis regulatory body to challenge the newly imposed Aspergillus testing standards. From March 1, all cannabis flowers cultivated in Oregon underwent testing for heavy metals and Aspergillus fungi.

The Cannabis Industry Alliance of Oregon contends that this testing mandate is causing substantial financial strain on growers. Consequently, in collaboration with cultivation companies such as Southern Oregon Family Farms, Cannassentials, and Essential Farms, the association filed a lawsuit against the Oregon Health Authority (OHA), as reported by the Bend Bulletin.

The Cannabis Industry Alliance of Oregon is the collective voice of more than 400 state-based companies, ranging from farms to retailers, many of whom have expressed their apprehensions regarding the recently enacted testing legislation.

According to the filing, as reported by Willamette Week, it states that unless the court intervenes to halt the enforcement of the rule temporarily, the petitioners will experience severe and irreversible damages well before the law undergoes a comprehensive judicial review.

These petitioners anticipate that if enforcement is not temporarily suspended until the judicial review, the rule will inflict immeasurable financial losses that could jeopardize the continued operation of their respective businesses.

If the Court of Appeals grants an emergency stay, the enforcement of the Aspergillus rule will be temporarily suspended until both parties resolve the matter through the legal process.

Aspergillus is a genus of fungi that can pose health risks, especially to individuals with weakened immune systems. In June, Oregon state regulators recalled numerous products derived from three batches of cannabis flower due to contamination by Aspergillus and heavy metals.

As of late June, the Oregon Liquor and Cannabis Commission reported an 8% failure rate for cannabis flower contaminated with Aspergillus, while the overall Aspergillus failure rate across all cannabis products stood at 4.3%.

Suspending Cannabis Testing Mandate for Aspergillus Mold

The Oregon Court of Appeals has temporarily suspended a recent marijuana lab-testing mandate concerning Aspergillus, a mold variety linked to recalls in various legal cannabis markets. Marijuana cultivators in Oregon had raised concerns, warning that the state’s stringent “zero-tolerance” policy for Aspergillus would have severe economic consequences, as reported by Portland TV station KOIN.

This decision is now in immediate effect, and cultivators, especially with the approaching outdoor cannabis harvest, expressed relief. In its ruling, the court stated that state regulators should have explored more adaptable approaches to regulate the presence of this mold.

According to Willamette Week, the court’s ruling considered various factors, including the potential irreparable harm to petitioners if a stay was not granted, the likelihood of petitioners succeeding in their case, and the potential damage to the public if a visit was given. Based on these considerations, the court concluded that suspending the enforcement of the Aspergillus Testing Rule was appropriate in this instance.

This ruling will remain in effect until the resolution of a lawsuit filed by cultivators against the Oregon Health Authority (OHA) in July. The case was initiated in response to the regulator’s announcement of a complete prohibition on any level of four types of mold detected in cannabis products, as reported by KOIN. The central issue revolves around the uncertainty regarding mold’s impact on the health and safety of consumers.

This is a difficulty that many state cannabis regulators and producers are currently wrestling with. In Arizona, cannabis products tainted with Aspergillus have been subject to recall three times already this year. California’s cannabis regulatory authorities have also recalled products containing this mold.

Notably, no reported illnesses have been linked to these recalls; however, there is concern that the mold could pose a health risk to individuals with weakened immune systems.

Aspergillus: Not a Cause For Concern

According to the Centers for Disease Control and Prevention (CDC), Aspergillus generally does not harm individuals with robust immune systems. However, for those with compromised immune systems, inhaling the mold can lead to lung or sinus infections that may potentially spread to other parts of the body, as detailed on the CDC website.

Aspergillus, a fungus responsible for causing aspergillosis, is prevalent indoors and outdoors. Consequently, most individuals are exposed to fungal spores from Aspergillus daily, making it virtually impossible to avoid inhalation.

In the case of individuals with robust immune systems, inhaling Aspergillus spores poses no harm. However, such exposure can result in lung or sinus infections for those with compromised immune systems, potentially spreading to other body areas.

Among the roughly 180 species of Aspergillus, fewer than 40 have been identified as causing human infections. Aspergillus fumigatus is the predominant culprit responsible for human Aspergillus infections, with other prevalent species including A. flavus, A. terreus, and A. niger.


The Oregon Liquor and Cannabis Commission has greenlit the sale of cannabis products previously held back due to Aspergillus mold concerns, totaling 2,500 pounds of cannabis and 65,000 pre-rolled units. This follows a legal tussle initiated by cultivators against the Oregon Health Authority’s strict “zero tolerance” Aspergillus policy, temporarily suspending testing requirements.

The court’s decision will stand until a lawsuit concludes, emphasizing concerns about the health impact of mold in cannabis. While several states have experienced Aspergillus-related cannabis recalls, no illnesses have been directly linked. Aspergillus poses minimal risk to healthy individuals but can harm those with compromised immune systems. (Full Story)

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