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5 things that didn’t fit into our edible pot story

June 23, 2010 - 9:33 am

Food products from the Best Buds collective

There isn’t always the room in our print stories for all the context, so, in order to provide more information to supplement this week’s article on medical-marijuana edibles and the kitchens that prepare them, we present these five bullet points.

The issue, of course, is whether the county and state are doing their duty in protecting medical-marijuana patients from food-borne illnesses.

But first, you should take a look at the guidelines for food facilities provided by the county. Link here.

1. The mystery of the “agonizing painful death”

Several members of the city’s Medical Marijuana Task Force were shocked when CityBeat pointed out this language in the “Cannabis Patient Advisory,” which was attached to the task force’s official recommendations:

The fact that most edible [sic] are produced in kitchens which have no been certified by the health Department [sic] creates a risk of serious illness and/or agonizing painful death.

The task force’s chairman, law professor Alex Kreit, told CityBeat he did not remember how that language got into the document. The task force’s vice chair, Stephen Whitburn, who is also candidate for the County Board of Supervisors, similarly said he did not remember approving the “colorful” language. Marijuana cookbook author Kim Twolan, who helped craft the edibles recommendation, says she has contacted City Attorney Jan Goldsmith to change the attachment, which she says was the incorrect document.

It should also be noted that we’ve also seen this warning on a sticker on the back of a chocolate-dipped weed Rice Krispies treat from a collective in North Park.

2.  Law enforcement cares, too.

The issue of unsanitary food facilities has been noted not only by marijuana advocates, but by opponents in law enforcement. A report (pdf) to the California Police Chiefs Association noted that when the DEA raided the “Beyond Bomb” marijuana food factory in Oakland:

The area of the company used for processing and packaging edibles was atrocious. No sanitary precautions were taken whatsoever and the area was absolutely filthy and vermin was present.

The report also note that people have, indeed, suffered as a result of marijuana foods made in unlicensed kitchens:

On August 15, 2006, a newly established Medical Marijuana dispensary in Hollywood, in an effort to recruit patients, handed out free samples of bakery items laced with THC. Two persons, an UPS driver ate a cookie and a security guard ate a piece of chocolate cake, and then fell violently ill and was hospitalized.

3. Law enforcement cares, and that’s why not all pro-medical marijuana activists agree with health inspections.

Randy, a member of the Green Earth Herbal Collective in Pacific Beach who asked his surname be withheld, tells CityBeat he opposes county inspections because he doesn’t trust local government.

“If they say ‘good morning,’ I’m looking for night time because they haven’t told the truth about anything yet,” Randy says.

He believes law-enforcement organizations would use the inspection information to raid legitimate collectives. “They will use any excuse to enforce their beliefs,” he says.

4. Other jurisdictions

If San Diego County’s position on the issue seemed wishy-washy and confusing in this week’s story, that’s because it was: the policy seemed to change, evolve and eventually turn 180 degrees right before our deadline.

It seems that the county’s Department of Environmental Health just hasn’t thought too deeply about the issue. Other jurisdictions, however, have dug in.

The city/county of San Francisco actually issued guidelines (pdf) for marijuana food production, including rules like:

No edible cannabis products requiring refrigeration or hot-holding shall be manufactured for sale or distribution at an MCD, due to the potential for food-borne illness.

and

Individuals conducting the manufacturing or sale of products shall thoroughly wash their hands before commencing production and before handling the finished product. Gloves must be worn when packaging edible cannabis products.

and

In order to reduce the likelihood of foodborne disease transmission, individuals who are suffering from symptoms associated with acute gastrointestinal illness or are known to be infected with a communicable disease that is transmissible through foodstuffs are prohibited from preparing edible cannabis products until they are free of that illness or disease, or are incapable of transmitting the illness or disease through foodstuffs. Anyone who has sores or cuts on their hands must use gloves when preparing and handling edible cannabis products.

Sacramento County’s lawyers issued an opinion (pdf), which states that while it is a concern, the county health department shouldn’t inspect these kitchens at this stage. Here’s the rationale:

Very clearly the Brownie or Cookie meets the definition of food, in section 109935(a). An argument could be made that the marijuana becomes part of that food, or that it meets the definition of section 109935(b) as it is a component of that article.

The obstacle to inclusion of marijuana dispensaries in the retail food program is that the addition of marijuana to food items creates an adulterated food.

and

It is the recommendation of this office that your department not include marijuana dispensaries, licensed as such by incorporated cities among its permitted retail food establishments.

Nevertheless, the Health Officer does have an obligation to enforce provisions of the Sherman Act. Therefore, in the event of a health inspector determining that a dispensary is providing food containing marijuana to its customers, that information should be reported to the Attorney General, District Attorney or appropriate City Attorney for a determination regarding prosecution pursuant to Health and Safety Code Section 111825 and/or Penal Code 383 (adulteration of food).

In making the above recommendation this Office takes no position regarding the propriety of dispensaries distributing marijuana contained in food, other than the fact that under the current state of the law, such activity violates the Sherman act. The recommendation is not intended to be punitive.

This Office notes that implementation and clarification of Proposition 15 has been an ongoing progression. Some aspects of the legalities created by Proposition 15 remain gray areas, as is evidenced by Attorney General’s own comments concerning the vague legalities of dispensaries generally. The conflict created between the Compassionate Use Act and the Sherman Act may be one of those grey areas.

However, until such time as the State of California exempts marijuana from application of the food safety provisions of the Sherman Act, this office must conclude that the addition of marijuana to a food product constitutes the adulteration of food.

Five hours after CityBeat‘s deadline, California’s Department of Public Health produced its response (via e-mail) through a Q&A-style correspondence. Please click the link above to see the full response.

CDPH does not inspect and certify facilities that produce edibles that contain marijuana. Such facilities would have to be regulated as Drug Manufacturing facilities and subject to regulations for the manufacture of drug products. Since these “edible” products would not meet the requirements to be produced as drugs, CDPH would be unable to license and inspect such facilities.

That seems like a bit of a dodge: It’s not food, it’s not a drug, therefore we don’t have to protect public safety?

5. What does Whitburn say?

Seeing as Steve Whitburn was vice chair of the city’s Medical Marijuana Task Force and is a candidate for county supervisor, we hounded him about whether he thinks inspecting marijuana food kitchens should be the responsibility of the county. His response:

I have always approached this issue under the presumption that medical marijuana would ideally be dispensed in the same way pharmaceuticals are dispensed, but because of the conflict between federal and state law, med marijuana cannot be dispensed in pharmacies. So, you do have this parallel system that is kind of a no man’s land. This raises the question of whether a medical marijuana edible is a pharmaceutical product or a food. Now my gut tells me it is more of pharmaceutical product because people are using medical marijuana for its medicinal properties, not for fundamental nutrition, but it would also make sense to have somebody making sure that these edible products are safe and certainly that is done both with pharmaceutical  products and with food.

…It would make sense to me for the county to explore this question and  if the county should have a role in ensuring that these edible are products are safe for consumption then that would be an important service that it could perform for these patients.

It seems to me that a patient who is consuming an edible product that contains med marijuana should have a should be able to expect that that product is safe.

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