Michigan marijuana recall reversal let businesses sell contaminated cannabis

 

The recall was prompted by a lack of faith in results from Viridis, a Michigan-based laboratory with two locations. Retests following the recall found some of cannabis contained higher than allowable levels of yeast and mold, and in some cases, the potentially dangerous banned pathogenic fungus, aspergillus, which can cause lung infections leading to death.

 

However, when a state judge reversed parts of the recall, state regulators said they had few options but to release the marijuana that failed retesting for possible sale. In fact, emails obtained by MLive via the Freedom of Information Act, show at least nine growers or retailers pressured the state to release their product from holds, despite the fact that it failed retesting.

 

MRA spokesman David Harns told MLive on Jan. 13 that nearly 32 pounds -- that’s 513 ounces of marijuana -- failed safety testing, yet made it to store shelves with no clear indicator on packaging notifying customers of potential danger.

 

“This product has been sold” or “is currently available for sale,” Harns said.

 

There were 2,475 other individual products -- items not sold as loose flower, potentially pre-rolled joints -- that also failed testing and were cleared for sale.

 

Harns said the figure doesn’t include an additional unidentified amount of failed marijuana remaining at processing or grow facilities that had yet to ship to retail stores.

 

Emails obtained by MLive reveal some companies pushed for the right to sell contaminated weed.

 

Aspergillus has potential to cause Aspergillosis, a lung infection that can be fatal. While there are threshold limits in marijuana for the presence of general molds and yeast, detection of any aspergillus automatically disqualifies it for sale.

 

In a Dec. 10 email, MRA Laboratory Specialist Dr. Patrice R. Fields notified Yokhana that some of the marijuana he and Janowski sought clearance for tested positive for aspergillus. In response, Yokhana asked Price to “look at the original testing,” indicating that despite failed retesting the marijuana met safety standards prior to the recall.

 

The MRA’s recall pertained to any marijuana flower tested by Viridis Laboratories, which operates labs in Lansing and Bay City. An audit of samples that passed testing from the Viridis Lansing lab were later tested and found to contain aspergillus. But on Dec. 3, Court of Claims Judge Christopher Murray overturned part of the recall, saying since the audit only pertained to the Lansing lab, the recall for product tested in Bay City wasn’t justified.

 

“Our product was 100% tested at the Viridis North location (in Bay City),” Yokhana said in an email to the MRA. “I understand what you are saying, but the judge’s order for a (temporary restraining order on the recall for marijuana tested in Bay City) is for everything to return to status quo before this happened, which means this failed testing needs to return to its original form …

 

Samer Yokhana is named in state licensing records as a supplemental applicant, meaning he is a manager or partial owner, of two marijuana grows, including Vasmed in Vassar and Elite Pharms in Bloomfield Hills. Divine Budz is a marijuana brand with an active Facebook page listing Yokhana’s email address in the contact information.

 

MLive called a phone number associated with Divine Budz that was answered by a woman who identified herself as “Amanda.” The woman promptly hung up when the reporter identified himself. She did not answer when the number was called back.

 

Hours later, a man who identified himself as Yokhana, returned a call and said his company’s marijuana “didn’t fail for aspergillus. They just did a recall for Viridis labs.”

 

When asked specifically about the emails sent to the MRA, Yokhana said a manager would contact MLive with more information, but no one ever did.

 

Thaier Fandakly, who identified himself in an email with state officials as a technology manager representing Mediq Laboratories, a Linwood-based grow facility, became so frustrated with the MRA’s failure to clear failed marijuana, that he complained in emails sent directly to Gov. Gretchen Whitmer and Attorney General Dana Nessel on Dec. 15.

 

“According to Judge Murray’s order on (Dec. 3), all recalled products should be treated as if (the) recall never happened,” Fandakly wrote. “I’m requesting our products be changed to ‘test passed’ immediately.

 

“This is costing our business irreparable harm each day (the) MRA delays the reversal. Additionally, this is upsetting our vendors that we have worked hard to keep a good standing relationship with.”

 

MLive sent several messages to the email address in MRA records for Mediq Laboratories, and received no response. In a phone call to a number linked to Fandakly, a man who identified himself as a former coworker said he contacted Fandakly, who did not wish to comment.

 

Six of the companies initiating emails reviewed by MLive, including MNS Stephens Ventures in Warren, Custom Genetics in Whittemore, Aunt Sparkies in Vassar, Levels Cannabis in Center Line, Goldkine Cannabis in Warren and High Mountain Cannabis Company in Vassar, never responded to requests for comment via phone or email contact.

 

Three businesses, Mediq Laboratories in Linwood, Puff Cannabis in Madison Heights and Divine Budz in Sterling Heights, said they didn’t wish to discuss the emails when contacted by phone.

 

Three other companies with emails included in the MRA records release -- Green Mitten Pharms in Bentley, Wanda Products in Luzerne and Golden Harvests in Bay City -- said by phone or email their marijuana was never sold to customers or never failed testing but was on hold awaiting retesting. When the recall was lifted, the samples no longer required retesting and the businesses asked MRA to remove the holds.

 

David Pleitner, the CEO of Golden Harvests, in an email to MLive, said one of 28 samples failed retesting.

 

“It should be noted, this product passed its original test and passed one of two retests meaning two out of the three results passed full compliance,” he said. “However, out of an abundance of caution, we took immediate action with our retail partners and the product was either returned to us for remediation or destroyed.”

 

Joshua Smith, a cofounder of Green Mitten Pharms, when contacted by phone said his company’s marijuana never failed testing but was scheduled for retesting, which resulted in the MRA placing a hold on the product.

 

Emails from Jeff Tenniswood, who’s listed in state records as an owner of Troy-based Wanda Products, were included in the MRA records release, but Tenniswood said in a call with MLive his company’s marijuana never failed safety testing. It was placed on hold due to the recall and scheduled to be retested when the judge reversed the portion of the recall encompassing his product.

 

At that point, Tenniswood told MLive the business didn’t feel retesting was necessary, since it originally passed safety compliance requirements at the Viridis Bay City lab that was no longer part of the recall.

 

“The whole reason for having a regulated market” is to ensure product safety, Tenniswood said. “If it failed, then absolutely, it needs to be remediated for secondary testing. For us, that wasn’t the case. For us, our stuff never failed.”

 

The MRA did not notify the public specifically what products failed testing, as it has for past recalls, but did release a list of nearly 400 retailers that possessed recalled product.

 

The agency opened at least 22 investigations related to health complaints blamed on recalled marijuana that included reports of flu-like symptoms, nausea, headaches, asthmatic reactions and a case abdominal pain that resulted in pancreatitis and hospitalization.

 

“Each and every action the MRA took regarding this product safety recall was based solely on protecting Michigan’s cannabis consumers,” MRA spokesman David Harns said. “When we were taken to court in an effort to stop the recall, we raised concerns through our court pleadings about potential health and safety concerns. When a large portion of subsequent tests failed, we made sure that the court was aware.

 

“The MRA was enjoined by court order from taking any further action on the marijuana product that was carved out of the recall, even after filing a motion for reconsideration. The dedicated public servants at the MRA remain committed to keeping the safety of Michigan’s cannabis consumers as our primary focus as we work to establish Michigan as the national model for a regulatory program that stimulates business growth while preserving safe consumer access to marijuana.”

 

In its motion for reconsideration, the MRA said 26% of retested marijuana from the Bay City Viridis lab failed, according to court documents.

 

That doesn’t necessarily mean Viridis tests were flawed, and the company maintains its testing methods are and were accurate.

 

“The failed retests have no bearing on the accuracy of our initial laboratory results,” Viridis Laboratories CEO Greg Michaud said in December. “Once a sample has cleared point-in-time testing, the associated product goes through a variety of uncontrolled environments from transportation to processing/packaging, and finally to the provisioning centers where the product is handled by staff and customers. Contamination can and does occur at any part of these handling processes.”

 

In a comment for this story, Michaud said: “MRA rules currently do not require or even allow cannabis testing beyond the point-in-time testing. If the MRA believes that post-testing microbial growth is a health and safety issue, they should require re-testing of product if it’s still on shelves after a certain time has passed since the initial test.”

 

Viridis has conducted free retesting for thousands of samples to help ensure product safety since the “ill-advised and unnecessary recall,” Michaud said.

 

If customers attempt to purchase product that was originally tested and passed by the Viridis Bay City lab, the labeling will not indicate it failed retesting.

 

Retailers face a similar lack of transparency.

 

If we had the recalled marijuana “and it was sitting here on hold, if the flower producer sent it to be retested, and the judge lifted (the recall), we wouldn’t know that it got retested and failed during that period in time,” said Troy Boquette, the general manager of Freddie’s Joint, a retailer in Clio.

 

According to the MRA, product that failed safety testing would appear as such in the statewide system.

 

Freddie’s Joint was not among the companies that emailed the MRA to have product cleared, but like most retail locations in the state, did have in its inventory marijuana impacted by the recall.

 

“I don’t like the courts being the scientists and determining what’s safe and what’s not,” Boquette said. “I mean, it’s really black and white to me.

 

“It’s either safe or it’s not, and if the state of Michigan or a licensed testing facility says that it’s not safe, then it’s not safe to me, so I think anybody who would sell it is -- just, I’d question their motive.”