Pa. Justices Weigh 'One or More' For Doughnuts, Cannabis Tests

Pennsylvania Supreme Court Justice David N. Wecht may have had breakfast on his mind when questioning counsel for the state Department of Health on Tuesday over statutory language requiring medical cannabis growers and processors to use “one or more” independent labs to test their plants and products.

“If I have a tray of doughnuts with a sign that says ‘take one or more,’ is it your position that you can’t take just one?” Justice Wecht asked the department’s attorney during Tuesday’s arguments in Philadelphia. “The law says ‘one or more,’ and it appears the department doesn’t want to take ‘no’ for an answer.”

In arguments over the department’s proposed “two-lab requirement,” Justice Wecht and others on the bench focused on a section of the state’s Medical Marijuana Act that said participants had to submit to testing by “one or more” labs, which the Department of Health took further in its implementing regulations to say that two different labs had to do the testing for safety and efficacy.

Michael J. Fischer of the Pennsylvania Office of General Counsel, representing the department, said the authority to mandate testing by more than one lab came from elsewhere in the Medical Marijuana Act, which he said gave the department “broad and capacious” authority to regulate the industry, for the purpose of protecting patient safety and ensuring products are consistent and effective.

Fischer told the justices that after the state General Assembly passed the law enabling the commercial growing, processing and sale of cannabis products for medical use, the Department of Health proposed the so-called two-lab requirement. He said the requirement established that separate labs would test products at different phases of their development, no one lab would develop a monopoly, and grower/processors would be less likely to develop close relationships with a single lab that could skew test results.

“The department reached the conclusion that two labs would be better; would offer a check on one another,” Fischer said.

The Commonwealth Court struck down the proposed regulation and kept the state from enforcing it in June 2023.

Section 301 of the Medical Marijuana Act was what gave the department its broad authority to regulate medical marijuana in Pennsylvania, and while Section 704 specifically addressed testing and indicated growers needed to use at least one lab, that section did not preclude the department from raising the bar higher with its regulations, Fischer said.

But Justice Daniel D. McCaffery said the legislature’s choice to specify “one or more” labs in an amendment to the law when it knew the regulators were specifically proposing two labs may undermine the department’s argument that it was authorized to set the bar, and Justice P. Kevin Brobson asked if the department wasn’t misinterpreting who had to have the clear language of the law on their side.

“In Pennsylvania, for an agency to have authority, that authority must be in clear, unmistakable language,” Justice Brobson said. “You seem to be suggesting that for grower/processors to make the choice themselves, they need that clear, unmistakable language.”

Judith Cassel of Hawke McKeon & Sniscak LLP, representing the challengers, disagreed with the state’s claim that using just one lab for both tests was inherently less safe, and noted that growers and processors can voluntarily choose multiple labs to test at different stages of the process or to specialize in different products. The state’s goal of ensuring safety and accurate testing could be accomplished through the department’s certification and monitoring of the labs, laid out elsewhere in the law, she said.

“The Department of Health has regulatory authority over specific activities, but Section 704 limits the Department of Health authority over these specific activities,” Cassel argued.

Justice Brobson suggested what Justice Wecht joked about being a “plan B” for the department — using its monitoring and certification authority to only certify some labs to test plants, while others would only be certified to test finished products, effectively forcing grower/processors to pick two labs to do the required tests.

“The rigor the department puts a lab through is extensive,” Cassel said. “There’s no provision in the statute for certifying labs only for pre- or post-processing testing.”

The justices took Tuesday’s arguments under advisement.

The Pennsylvania Department of Health is represented by Michael J. Fischer of the Pennsylvania Office of General Counsel, and Michelle Henry and Kevin R. Bradford of the Pennsylvania Attorney General’s Office.

The labs, growers and processors are represented by Judith D. Cassel, Micah R. Bucy, Aaron D. Rosengarten and Dennis A. Whitaker of Hawke McKeon & Sniscak LLP.

The case is Green Analytics North LLC et al. v. Pennsylvania Department of Health, case number 76 MAP 2023, in the Supreme Court of Pennsylvania.

—Editing by Katie McNally and Orlando Lorenzo.