More Confusion in Cannabis Reguation: Is Organic Marijuana Really Organic?

As more and more states have legalized marijuana for recreational and/or medical use, there have been increasing complications and uncertainties between federal and state law in the regulation of cannabis. This has included issues such as banking, employment discrimination, federal income taxes, and now organic certification and labeling.

Organic labeling and organic production requirements are set by the USDA. Generally, synthetic substances are prohibited from being used in crop production unless specifically allowed and non-synthetic substances are allowed unless specifically prohibited. Other substances may only be approved for use on certain crops or up to certain amounts. Substances that are allowed to be used are listed on the National List of Allowed and Prohibited Substances.

Regardless of how a product is grown, a product generally cannot be labeled with the word "organic" unless it has obtained certification from the USDA that it has complied with its strict production and labeling requirements. However, because marijuana is classified as a Schedule 1 controlled substance and remains illegal at the federal level, the federal government will not certify cannabis as organic. Thus, while placing an organic label on cannabis products is technically illegal, non-organic growers have marketed their cannabis products as organic without retribution.

This loophole is a concern to states and consumers because it creates confusion and limits the ability of consumers to determine whether the product was produced as stated on the label. This issue recently became even more of a concern as Denver health authorities seized thousands of plants, many of which were marketed as natural and organic, but were thought to have been grown with prohibited chemicals.

In response, Colorado Representative Jonathan Singer is sponsoring a bill that would represent the first attempt by a state to create a certification system similar to the USDAs. Because the use of the term organic is strictly regulated by the USDA, Colorado's bill would instead direct the commissioner of agriculture to create rules to certify that marijuana or hemp had been grown without the use of pesticides and establish labeling rules to indicate the same.

While Colorado would be the first state to establish a certification program of this kind, other states do regulate the use of organic labeling. Several states require that the product be certified to be consistent with USDA organic standards in order to be labeled organic. However, because the USDA is the only entity that can legally certify that a product is produced in accordance with its standards, organic labeling restrictions of this type effectively prohibit the use of organic labeling in those states. Recent California legislation would require the state to develop an organic certification program by 2020, but only if allowed by the federal government.

The map below breaks down organic labeling laws by state.