River Rock Cannabis COO Jim Elftmann strips excess leaves from some of the plants and checks for any signs of disease at his company's cultivation facility on Sept. 15, 2015. The company had formerly gone by the name of River Rock Organic Cannabis until the Colorado attorney general's office began investigating marijuana businesses' use of the word "organic" in their name. River Rock began removing the word organic on all of their labeling and signage at the end of June 2015. (Kathryn Scott Osler, The Denver Post)

Colorado AG examining pot industry’s use of ‘organic’ term

Because marijuana is illegal under federal law, and use of the term organic is federally regulated, a state-licensed cannabis business can't be certified as organic no matter their practices

Colorado’s attorney general is investigating several marijuana businesses over concerns the word “organic” in their names or advertising might be misleading to consumers.

The office is reviewing complaints from consumers that the “merchants have been misrepresenting their product when they say ‘organic’ or ‘organically grown,’ ” said Roger Hudson, spokesman for state Attorney General Cynthia Coffman. “We’re looking for information inside those complaints to make a determination on what those next steps are. Is it consumer fraud? Is it criminal?”

The AG’s office would not give more detail on the scope of the investigation, but a lawyer who represents a marijuana business contacted by investigators said it appears to have limits.

The inquiry includes grow operations — some with “organic” in their names — recently caught up in Denver quarantines over pesticide concerns, attorney Sean McAllister said.

The AG is ensuring that businesses that use the word are at least “consistent with the concept of organic,” McAllister said.

Because marijuana is illegal under federal law, and use of the term “organic” is federally regulated, a licensed cannabis business cannot be certified as organic no matter its practices.

As such, no marijuana business in Colorado can technically use the word in its name or in selling its product, according to officials and industry insiders.

Potential fraud penalties under the Colorado Consumer Protection Act include fines of up to $10,000 per violation. Federal rules say that businesses wrongly selling a product as organic could face fines of up to $10,000.

Yet those rules have not been enforced in Colorado’s marijuana business until now.

State marijuana-license records show that 29 businesses — growers, retailers and dispensaries — use the word “organic” in their name. Some use a trade name containing the word “organic” to market marijuana products or use the term in their advertising.

A spot check of websites by The Denver Post found businesses claiming to sell “100% organic” cannabis, offering organic treatments of medicinal marijuana or use only “organic methods” to produce their product.

Some shops describe their product as “grown in organic soil” or that they “use organic growing techniques.”

Another website touts a “certification of organic standards and testing that mirrors the (U.S. Department of Agriculture) organic certification.”

Taking a risk

Brooke Wise, owner of Growing Kitchen in Boulder, said she’s willing to take the risk of labeling her company’s edibles — made with certified organic seeds and fruits — as organic, even if the marijuana in them isn’t.

“It’s a principle, an ideology that doesn’t belong to anybody,” she said, noting her plants would be certified organic if that existed. “On the list of sacrifices and gambles I take, (organic) is definitely on there.”

River Rock Cannabis COO Jim Elftmann strips excess leaves from some of the plants and checks for any signs of disease at his company's cultivation facility on Sept. 15, 2015. (Kathryn Scott Osler, The Denver Post)
River Rock Cannabis COO Jim Elftmann strips excess leaves from some of the plants and checks for any signs of disease at his company’s cultivation facility on Sept. 15, 2015. (Kathryn Scott Osler, The Denver Post)

But RiverRock Cannabis in Denver has backed away from using the term. Until recently, the company had been known as RiverRock Organic Medical Cannabis.

“The attorney general sent something saying that no dispensary can be certified as organic,” retail manager Chris Haggerty said.

The company changed signs, stopped handing out promotional items with the company’s name and even stopped selling T-shirts with the old company name, Haggerty said.

A group seeking to have marijuana certifiable as organic said a system for informing consumers how marijuana is grown is needed.

“The word ‘organic’ is being used inappropriately by people who are using very toxic chemicals. There’s no governing agency that is regulating that,” said John Paul Maxfield, co-founder of the Organic Cannabis Association in Denver. “In the absence of a body coming through and branding organic cannabis, that term can be used by everybody, even if it’s not done properly.”

Certification

The USDA accredits companies and state governments to certify any farm as complying with federal organic regulations for agricultural products. No company may use the term without this certification.

“Marijuana may not be certified organic under the USDA organic regulations,” said a USDA spokesman who could not be named because it’s the agency’s policy when discussing marijuana. “Marijuana is considered a controlled substance at the federal level, and organic certification is reserved for agricultural products.”

The USDA’s National Organic Program rules say companies with “organic” in their name cannot prominently display it on a product and cannot use the name at all if it misrepresents that a product has been certified organic.

It falls to the Colorado Department of Agriculture to certify and accredit agricultural businesses in the state as organic — as well as police for inappropriate and illegal uses of the word — on behalf of the USDA.

If the state chose to certify marijuana as organic, it would have to ignore federal rules, and that’s unlikely, said Mitch Yergert, director of CDA’s plant industry division.

The state’s inquiry came after the Denver Department of Environmental Health this year quarantined more than 100,000 marijuana plants over pesticide concerns.

One company, Organic Greens, tested positive for unapproved pesticides. But because it operates publicly as Natural Remedies, the AG’s office allowed it to keep its name, said McAllister, its attorney.

“Their actual corporation name is Organic Greens, but they don’t use it in advertising. They don’t publicize themselves as ‘organic.’ They don’t do any advertising as organic … so nobody’s being misled,” McAllister said, confirming the company came under AG scrutiny.

McAllister said the AG is focusing, at least in part, on companies that have used pesticides not allowed by the state for use on marijuana.

“They understand you can’t get federal certification for the word ‘organic’ in marijuana,” he said. “(The AG’s office is) not substituting themselves for a certification agency, but if it’s clearly not organic, if someone’s using Mallet or Eagle 20, they are also looking for those cases.”

Mallet and Eagle 20 are pesticide trade names whose active ingredients contain chemicals the state has not approved for use on marijuana.

Although no chemical pesticide can obtain federal approval for use on cannabis, state agriculture officials have determined which products have labels whose restrictions are so broadly worded that using them on marijuana would not be a violation.

David Migoya: 303-954-1506, dmigoya@denverpost.com or twitter.com/davidmigoya
Ricardo Baca: 303-954-1394, rbaca@denverpost.com or twitter.com/bruvs

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This story was first published on DenverPost.com