Ala. Admin. Code r. 538-X-10-.08

Current through Register Vol. 43, No. 1, October 31, 2024

Section 538-X-10-.08 - Test Results; Retesting; Challenges To Test Results

(1) A State Testing Laboratory shall provide the final certificate of analysis containing the results of official testing pursuant to this Chapter to the licensee which provided the sample within two (2) business days after obtaining the results.

(2) If a sample from a batch of cannabis fails an official test conducted by a State Testing Laboratory, the remainder of the batch, including any cannabis plant trim, leaf; and other usable material from the same batch automatically fails the official test.

(a) A batch that fails an official test may be remediated and retested upon the request of the licensee. Initial retesting shall occur using the same sample at the same State Testing Laboratory; however, at the discretion of the licensee, subsequent retesting may occur at a different State Testing Laboratory, if available.

(b) A batch of cannabis that fails a microbial screening may be used to make a CO2 or solvent- based extract. After processing, the CO2 or solvent-based extract must pass all required official tests.

(3) If a sample from a batch in the production of medical cannabis fails an official test conducted by a State Testing Laboratory, the entire batch from which the sample was taken automatically fails the official testing.

(4) A State Testing Laboratory shall, at the time of collection, obtain a sample large enough to undergo two tests; it shall keep any sample which fails testing for 30 days (or longer, at the request of the Commission) pending a request by the licensee to (A) seek retesting, (B) challenge the result, or (C) accept the result and seek remediation of the failed sample and/or the batch from which it was derived. A sample kept by the State Testing Laboratory pursuant to this subsection must be stored in a cool, dry area to prevent or minimize deterioration, and the sample shall be made available to the licensee upon request for further testing in furtherance of any challenge or attempt to remediate. A cannabis testing facility shall dispose of a sample kept pursuant to this subsection after 30 days have elapsed after failure of testing, barring a contrary request by the Commission.

(5) Within seven (7) days following a failed test, a licensee must take at least one of the following actions:

(a)Accept. Accept the results of the test and destroy the batch.

(b)Retest. Request in writing (with copy to the Commission provided electronically through the Statewide Seed-to-Sale Tracking System) that the State Testing Laboratory retest the sample as to the portion of the test that failed; if the second test of the same sample passes, the sample (if available, otherwise a parallel sample taken by the licensee under subparagraph 6. of this Rule) shall be sent to another State Testing Laboratory, if available, as chosen by the Commission, to provide a tiebreak test (the Commission's function shall not be to gatekeep such a request, but merely to assign the State Testing Laboratory that will administer the subsequent retest). The results of the tiebreak test are final.

(c)Challenge. Following a test or failed retest by the State Testing Laboratory, a licensee may challenge the results by a request in writing (with copy to the Commission provided electronically through the Statewide Seed-to-Sale Tracking System) that two additional State Testing Laboratories be chosen by the Commission, if available; the two additional State Testing Laboratories shall provide full testing of the parallel samples taken by the licensee under subparagraph 6. of this Rule (the Commission shall not be to gatekeep such a request, but merely to assign the State Testing Laboratory that will administer the subsequent retest). If both challenge tests are deemed valid and demonstrate that the batch passed, the challenge is successful and the batch is cleared for use; otherwise, the challenge is unsuccessful, and the batch must be destroyed. The Commission shall be the final arbiter of any challenge under this rule.

(d)Remediate. Attempt to remediate the batch and request in writing (with copy to the Commission provided electronically through the Statewide Seed-to-Sale Tracking System) that the State Testing Laboratory obtain new samples and retest the remediated batch. Batch Remediation effects a reset of the testing process: testing prior to remediation is not considered, but only the testing of the new, remediated batch.

(6) A licensee may not challenge or request a retest by a State Testing Laboratory pursuant to this rule unless, at the time samples are initially taken for testing, the licensee ensures that three samples are collected at the same time by a State Testing Laboratory using tamper-resistant containers. One of the samples must be taken by the State Testing Laboratory for testing and the licensee must place the other two samples in a secure quarantine storage area at its facility for further retesting by a secondary State Testing Laboratory. If at any time, further testing cannot be performed due to (A) the lack of available State Testing Laboratories to conduct further or additional tests, or (B) the lack of viable samples from which to perform retesting, tiebreak testing, or challenge testing, the licensee shall have no choice but to accept the result of the failed test and destroy or attempt remediation of the batch as required under this Rule.

(7) A licensee may request a retest as often as it likes, but it may not challenge the results of the test conducted by the State Testing Laboratory more than three (3) times during a one-year period; however, a successful challenge leading to a reversal of the original failed test shall not count toward the three (3) times.

(8) A licensee requesting a retest or challenge, or seeking new testing following remediation, shall be responsible for all costs involved in any testing performed pursuant to this Rule.

(9) Barring contrary results based on a retest or challenge as provided in paragraph 5. of this Rule, if, upon retesting, a sample provided to a State Testing Laboratory sample fails the same official test, the licensee that provided the sample shall destroy and dispose of the entire batch from which the sample was taken and document the destruction and disposal of the batch to the Statewide Seed-to-Sale Tracking System. A batch so destroyed and disposed of must not be recognizable as cannabis or medical cannabis, nor shall it be usable for any legal or illegal purpose.

(10) If a sample provided to a State Testing Laboratory pursuant to this section passes the same official test upon retesting and tiebreak testing by a separate State Testing Laboratory, the licensee need not destroy the entire batch; instead, the State Testing Laboratory shall clear the batch for further processing, packaging, labeling or sale, as appropriate, by means of certificate provided to the licensee and a notation on the Statewide Seed-to-Sale Tracking System.

Ala. Admin. Code r. 538-X-10-.08

Adopted by Alabama Administrative Monthly Volume XL, Issue No. 11, August 31, 2022, eff. 10/15/2022.

Author: William H. Webster

Statutory Authority:Code of Ala. 1975, §§ 20-2A-22, as amended.

The amended version of this section by Alabama Administrative Monthly Volume XLII, Issue No. 12, September 30, 2024, filed September 12, 2024 is not yet available.