Oregon marijuana growers dreading the brand new aspergillus testing rule can exhale (for now). That’s as a result of on Friday, August 25, the Oregon Supreme Courtroom stayed enforcement of the brand new aspergillus testing rule pending a last listening to on the deserves. This can be a huge deal! Kudos the Hashish Business Alliance of Oregon (CIAO) and the co-petitioners who filed a petition towards the Oregon Well being Authority (OHA) and Oregon Liquor & Hashish Fee (OLCC) looking for judicial overview of the brand new aspergillus testing rule. Kevin Jacoby, who represents the petitioners, did a wonderful job. We’ve coated the aspergillus testing rule earlier than right here, right here, and mentioned the lawsuit right here. We weren’t optimistic in regards to the odds of success, however are fairly happy for our quite a few purchasers who develop marijuana in Oregon.
Let’s dive into the ruling and what it means.
How did we get right here?
In March 2023, the Oregon Well being Authority (“OHA”) promulgated a brand new rule that required testing marijuana for sure microbiological contaminants, together with for aspergillus. On July 28, 2023, the CIAO and others filed a lawsuit difficult the OHA’s new aspergillus testing rule. The petitioners search to cease the OHA from implementing the rule and after they filed go well with additionally they filed a movement for emergency reduction from the brand new aspergillus testing rule.
A litigant who seeks emergency reduction compelling or stopping one other litigant from doing one thing is combating an uphill battle. Right here, the petitioners needed to set up to the Supreme Courtroom that “irreparable damage in all probability would consequence” if a keep is denied. The Supreme Courtroom additionally considers the probability that petitioners will prevail on the deserves and the probability of hurt to the general public if a keep is granted.
Petitioners provided proof that the hurt to them from enforcement of the aspergillus testing can be “devastating and irreparable.” This proof included petitioner’s exhibiting that at the very least certainly one of them can be out of enterprise and inflicting a “danger of whole enterprise failure as quickly as this fall” to quite a few different marijuana growers if the keep was denied. Respondents (OHA & OLCC) argued the impression of the aspergillus testing rule was “extremely exaggerated” however didn’t argue petitioners failed to indicate irreparable hurt. The Courtroom discovered petitioners made the required exhibiting of irreparable hurt.
The Courtroom turned as to whether petitioners demonstrated a probability of success on the deserves, and dominated they did. Petitioners argued that the OHA exceeded its statutory authority in promulgating the aspergillus testing rule by failing to think about “much less restrictive options” as required by Oregon Statute 475C.544(8)(b). Petitioners directed the Courtroom to proof exhibiting the OHA was conscious of much less restrictive options adopted in different states and argued the aspergillus testing rule was extra restrictive than obligatory to guard public well being. Respondents (the OHA), stated the Courtroom, didn’t increase a “clear response” to this argument. As a result of the legislature directed that the OHA requirements “could not” be extra restrictive than fairly obligatory, the Courtroom dominated that petitioners have proven a probability of success on judicial overview.
Lastly, the Courtroom examined whether or not staying enforcement of the aspergillus testing rule would negatively have an effect on public well being. Petitioners argued it could not. They pointed to Oregon’s eight-year monitor file of leisure marijuana and twenty-five 12 months historical past of medical marijuana use. In all that point, defined petitioners, there was no knowledge linking hashish consumption to increased charges of aspergillosis in Oregonians. The Courtroom discovered this persuasive and made no point out of any proof or argument introduced by the OHA or OLCC.
What does the ruling imply?
Neither the OHA nor the can OLCC implement the aspergillus testing rule right now. Particularly, the court docket stayed enforcement, pending completion of judicial overview, of the provisions of OAR 333-007-0390 regarding testing for “Aspergillus flavus, A fumigatus, A niger and A terreus.” The court docket didn’t keep the parts of the rule regarding “Shiga toxin producing Escherichia coli and Salmonella species,” which weren’t challenged on this case.
The Oregon aspergillus testing struggle is just not over
This can be a huge victory for hashish growers in Oregon. However the case is just not over. The case now proceeds to a full listening to the place the events could provide extra proof. Primarily, the Courtroom determined to remain enforcement of the rule on an emergency foundation, however the last choice comes later.
Aspergillus testing gained’t be required this fall harvest
We extremely doubt the case will progress within the subsequent few months. Which means, till additional discover, the aspergillus testing rule can’t be enforced as described above.
Petitioners have the higher hand up to now
This ruling is a boon for petitioners and Oregon marijuana growers. Studying between the strains of the opinion, the Courtroom discovered petitioners introduced very robust proof and arguments that the OHA’s rule goes far past what could also be wanted to guard the general public from aspergillus. Maybe this may trigger the OHA and OLCC to entertain discussions with the CIAO and others on the best way to rewrite the rule to guard each marijuana growers and fulfill the general public well being issues that led them to undertake this rule.
Once more, nice work on behalf of the trade by the CIAO and others.