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The Office of Cannabis Management recently changed its testing limits for smokable flower by raising the allowable amount of nickel – a potentially toxic but abundant element found in plants, soil, animals and bodies of water.
While the move should allow more cultivators to pass testing and get their products to market, the change is frustrating for some farmers who had previous harvests that could have passed testing under the new rules – but instead were written off or turned into biomass.
Asked about the reasons for the change, OCM spokesperson Aaron Ghitelman told NY Cannabis Insider that the agency “reviews data and scientific evidence to ensure our testing standards are both up to date and appropriate” and “determined a change was appropriate to best protect New Yorkers.” (How raising a limit helps protect consumers, the OCM wouldn’t say).
However, one Adult-Use Cannabis Cultivator had made it his mission over the past year to see the state adjust its nickel testing – Aaron Leentjes, founder and farmer at UNIFI Group.
In an in-depth Q&A, Leentjes explains nickel prevalence in soils, how other states and industries limit the element, and why he sees the OCM’s recent changes as yet another way the agency failed to address issues facing farmers in a timely fashion – with significant implications.
The following interview with Leentjes has been lightly edited for grammar and style.
How much cannabis did you grow last year, and what happened with it relative to nickel testing?
In 2022, we cultivated at our full canopy cap (one full acre of outdoor) with a portion of the harvest hand selected as high-quality flower. The balance of our production went to fresh frozen for live rosin production as well as general extraction to produce distillate. I prefer not to get into total production numbers, but 400 pounds is a good working number for the quantity of high-quality flower we produced.
But I’d like to preface the conversation about nickel with the following context.
In New York State, cannabinoid hemp has only ever been tested for the following metals: cadmium, lead, arsenic and mercury. This cannabinoid hemp has been widely sold for public consumption for years in the form of smokable products and is still available for purchase across the state.
Recreational cannabis is required to be tested for antimony, arsenic, cadmium, chromium, copper, lead, mercury, and nickel. In recent conversations with representatives from the OCM, I was informed that the testing for additional metals was brought in from the state’s medical cannabis program.
I am unsure what the origins of the medical testing requirements were, but they were likely based on medical programs from states that legalized before New York.
A critical item to note here is that the registered organizations that produce medical cannabis in New York State cultivate in inert media (rockwool, coco coir, etc.) and feed with liquid fertilizers.
In contrast, the vast majority of recreational cannabis produced in New York these first two years has been grown in native soil. This was largely due to the OCM’s sustainability requirement that all cultivation by AUCCs had to occur under natural light and that cultivators were limited to 20 supplemental artificial lights.
The natural light requirement and lighting restriction acted as a de facto ban on indoor production. Also keep in mind that most AUCCs have been producing high-quality smokable cannabinoid hemp products in native soil since the passing of the 2018 Farm Bill – with no known issues with heavy metals.
Now, back to the question.
As is required by the state, we sent samples of our flower into a state-licensed lab for full panel testing. The results we received for four different strains cultivated with identical inputs in the same native soil varied from 1.5 parts per million (ppm) of nickel to 3.1 ppm nickel.
The state limit for nickel for smokable flower products was set at 2 ppm, which meant that we had both passing and failing tests. Based on our experience with cannabinoid hemp testing, we opted to send samples to a second state-licensed laboratory to validate the results.
The second laboratory returned results varying from 1.7 ppm of nickel to 2.2 ppm with previously passing strains testing above the limit and previously failing strains falling below the limit. One strain varied by over 1 ppm between labs, which is a significant amount when talking about a 2 ppm limit.
In part, the inconsistency could be chocked up to natural variation in outdoor cultivation conditions, plant genetics, etc., but consistency in testing across state-licensed labs has been a known issue that the OCM has been working to correct.
The bottom line was that – without consistent passing results this flower could not go to market, at least not in a form that held even 20% of its worth as flower.
Do you have an estimated value for that crop?
Placing a value in today’s market is difficult with how few retail outlets are operating, but I’ll give you a couple data points to work from.
In conversations with some folks I know that have a brand on multiple dispensary shelves, the number of $1000 a pound was mentioned in reference to purchasing smalls to grind for pre rolls. That would be on the low end, but gives us a floor to work with.
From the top down we can look at the price of an eighth on dispensary shelves. Looking at the menu at Flynnstoned, a CAURD in Syracuse, NY, flower is selling for $30 to $60 an eighth, which equates to roughly $3800 to $7800 a pound retail.
With a retail markup of 50%, that’s $1900 to $3900 a pound minus potency tax if the retailer makes you eat that cost.
Twenty-percent flower is taxed at one dollar a gram, so that’s $454 a pound leaving the grower with a final value of $1446 to $3446 a pound.
That gives our crop a value between $400,000 to $1,378,400.
What work did you put in trying to understand nickel limits?
As an academic at heart, I dove into research after receiving the failing test results. We reviewed all our agricultural inputs to determine any potential sources of nickel and the only piece of the puzzle where I could find any nickel was in our native soil. When tested, our native soil tests between 18-25 ppm nickel.
To provide some context: the New York State Department of Environmental Conservation considers soil with below 30 ppm of nickel clean and unrestricted for all uses. (NYSDEC Residential Soil Cleanup Objectives, 2006).
The US Composting Council has a limit of 420 ppm for nickel in compost.
I was able to find a certificate of analysis for a batch of Premier Pro-Mix HP with mycorrhizae, a commonly used potting mix, listing 13.59 ppm nickel. Research shows that nickel content in soils varies widely, with a grand mean calculated at 22 ppm (Iyaka, 2011).
Across New York State, the geometric mean for nickel in mineral soil is 19.7 ppm (Holmgren et al, 1993) and a study by the NYS DEC of rural soils showed a range of 4.9 ppm to 51 ppm in the areas sampled.
I also reached out to two university soil labs as well as the Department of Agriculture for Oregon, Washington, and California, since those states have a wealth of cannabis knowledge.
In conversations with the fertilizer division of the Oregon Department of Agriculture, the advice I was given in order to reduce nickel in final smokable product was to cultivate in inert media and feed plants with synthetic salts, thus reducing or eliminating nickel in input materials. While this approach is in line with how the New York State registered organizations operate, it runs counter to most AUCC’s goals of sustainability and regenerative agriculture. It also adds a significant increase in production cost over traditional outdoor cultivation methods.
In my research I also considered the public health implications. As recreational cannabis is an adult-use product consumed via smoking – similar to tobacco – I reviewed the available research around smokable tobacco. What I found was that, in general, tobacco products contained levels of nickel above, and sometimes well above, the 2 ppm limit that the OCM set for cannabis.
Tobacco contains:
- Between 2.1–3.9 ppm nickel (Fresquez, Mark R., R. Steven Pappas, and Clifford H. Watson. “Establishment of toxic metal reference range in tobacco from US cigarettes.” Journal of Analytical Toxicology 37.5 (2013): 298-304.)
- 0.64-5 ppm nickel (Bernhard, David, Andrea Rossmann, and Georg Wick. “Metals in cigarette smoke.” IUBMB life 57.12 (2005): 805-809.)
- 17.93 ppm nickel (Pourkhabbaz, Alireza, and Hamidreza Pourkhabbaz. “Investigation of toxic metals in the tobacco of different Iranian cigarette brands and related health issues.” Iranian journal of basic medical sciences 15.1 (2012): 636.)
- 4.28-8.18 ppm nickel (Westcott, D. T., and D. Spincer. “The cadmium, nickel and lead content of tobacco and cigarette smoke.” Contributions to Tobacco & Nicotine Research 7.4 (1974): 217-221.)
I did not delve into the specific health effects of the levels of nickel that are reported in the aforementioned studies since that is far outside of my area of expertise.
I have been in the process of compiling this information into a white paper on the topic. However, the process has been slow as I work a full-time job on top of running our cultivation operation.
All in all, my research indicates that our native soils are not far off from the average across the state. In order to avoid this issue for the 2023 cultivation season, we invested a significant amount of capital in cultivating a portion of our canopy in containers of non-native soil. Our initial metals tests of the 2023 harvest show that we are well below the 2 ppm limit.
Did you reach out to OCM about the issue in the past?
I placed two calls to the OCM on the nickel issue and both times I was bounced around the phone system and eventually told to send an email. However, I did not immediately send an email as I was still compiling research at the time.
I submitted much of the aforementioned information as a question to the cultivator town hall that the Cannabis Association of New York held on May 25, 2023. At that event, OCM representatives fielded questions submitted by licensed cultivators. Unfortunately, my question was not asked in the live town hall, but I was under the impression that CANY sent or presented the questions that weren’t answered to the folks at the OCM. I never received any further information and as planting was right around that time, I have been neck– deep in the season since then.
When I reached out to CANY, they stated that the OCM never responded to the question directly.
How did you hear about the new changes to nickel? Was it from the OCM?
A fellow cultivator was told in conversation with a lab that new guidance had been given to the labs. We contacted two labs that we work with to confirm. I also called the OCM, but after being transferred twice, I was told to email the general labs inbox.
I received a link to the updated limits two days later with a statement that additional information will be provided to cultivators soon. I also received a call from Victoria Pretti of the OCM’s Health and Safety Unit. Victoria compiled the research that backs up the changes in the nickel limit.
What are your thoughts on the new limits?
I feel that the new 5 ppm limit is in line with what my research found. In fact it is slightly higher than what I was requesting the limit be raised to in my white paper.
Any additional thoughts?
I have spoken with cultivators across the state from Western New York to the Hudson Valley who have stories much like mine.
One cultivator from Orange County produced and packaged 50,000 units of a smokable product in May only to have them test at 2.1 ppm, just barely above the 2 ppm limit. Unable to bring the product to market and unsure what to do with it, the cultivator placed the product in climate-controlled storage. Now, with the increase in limit, they are sending the product in for re-testing (yet another cost that cultivators have to shoulder) and hoping to bring it to market.
Lisa Keller, an AUCC from Chautauqua County, said that failing to meet the state’s 2 ppm nickel limit brought their business to a standstill. Unable to sell the 300 pounds of flower that they produced, they looked to sell the material to processors, but at that point the bottom had fallen out of the biomass market.
I was pleasantly surprised to receive a call from Victoria Pretti of OCM’s Health and Safety Unit on Nov. 1 in response to an email I sent requesting clarity about the revision to the nickel limits for smokable flower products.
In our discussion, Victoria mentioned that she had compiled research on revising the nickel limit and ran it up the chain at the OCM back in March. She was asked to make some revisions, which she did in short order, and sent research and suggestions back again for review.
Only now, an entire cultivation cycle later, have the regulatory limits been revised based on that research.
This delay in regulatory change had significant implications for cultivators such as myself. A revision in April or May would have allowed us to sell material while it was still fresh and the market was less stagnant. We would have avoided the significant capital outlay to change our cultivation strategies for the 2023 season to try to comply with the 2 ppm limit – capital that is desperately needed for other aspects of our businesses.
Even an update prior to harvest time would have allowed cultivators to adjust their harvest strategies to take some of the material that they turned into biomass to be marketed as flower instead.
Unfortunately, this is what cultivators have come to expect. Since the passing of the 2018 Farm Bill, the New York State cannabis farmer has been faithfully fighting an uphill battle, but now many are on the brink of giving up.
Clarification: This story has been updated to include more detailed academic citations.