Pesticides and Cannabis in Nevada

Introduction:

Protecting the health and safety of patients, consumers, and workers must be the top priority of all cannabis establishments in the Nevada cannabis industry. Federal and State laws and administrative regulations strictly restrict the types of pesticides and products that can be used in a cannabis establishment and the manner in which such products are used within a facility. Failure to adhere to the prevailing laws and regulations regarding pesticide use can result in injury or death of workers, patients, or customers exposed to pesticides. It is critical for cultivators, and their pesticide applicators, to understand what they can and cannot use in their facilities, one mistake can lead to catastrophe.

Unlike states like Colorado, that provides a specific list of products permissible for use on cannabis, the Nevada Department of Agriculture (“NDA”) and the Nevada Cannabis Compliance Board (“CCB”) have left Nevada cultivators to figure it out for themselves. The purpose of this article is to provide a brief overview of Nevada’s cannabis laws and regulations regarding the use of pesticides in a cultivation facility.

Legal Summary:

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), codified as 7 U.S.C. § 136 et. seq. (1996), governs the sale, registration and use of all pesticides within the United States. All pesticides distributed or sold in the United States must be registered with the United States Environmental Protection Agency (the EPA), unless they fall under an exemption. Nevada state law follows closely along with its federal counterparts. See, NRS Chapter 586, the Nevada Pesticides Act.

Any pesticide used distributed to or sold in Nevada must be registered with the State of Nevada Department of Agriculture, including 25(b) exempt products. See, NRS 586.250.

The Nevada Legislature has adopted specific legislation regarding pesticide use on cannabis. NRS 586.550 states as follows:

NRS 586.550 Requirements for use of certain pesticides by cannabis establishments; publication of list of approved pesticides for use on cannabis and cannabis products.

1. A cannabis establishment may use a pesticide in the cultivation and production of cannabis and cannabis products if the pesticide:

(a) Is exempt from registration pursuant to 40 C.F.R. § 152.25 or allowed to be used on Crop Group 19, as defined in 40 C.F.R. § 180.41(c)26, hops or unspecified crops or plants;

(b) Has affixed a label which allows the pesticide to be used at the intended site of application; and

2. The State Department of Agriculture shall, in accordance with the provisions of this chapter, establish and publish a list of pesticides allowed to be used on cannabis or cannabis products pursuant to this section and accept requests from pesticide manufacturers and cannabis establishments, or a representative thereof, to add pesticides to the list.

3. As used in this section:

(a) “Cannabis establishment” has the meaning ascribed to it in NRS 678A.095.

(b) “Cannabis products” has the meaning ascribed to it in NRS 678A.120.

(Added to NRS by 2015, 3103; A 2017, 3724; 2019, 3884)

NRS 586.550 places three basic requirements on the use of pesticides in a cannabis establishment:

The Product must be exempt from registration under 40 CFR § 152.25 (the 25(b) list) or allowed to be used on Crop Group 19 (spices), hops or other unspecified crops;
The Product must have a label approving its use at the site (greenhouse, outdoor, etc.);
The Product must have a label allowing the pesticide to be used on crops intended for human consumption.

In addition to the above requirements, NRS 586.550 requires the Nevada Department of Agriculture to produce a list of “pesticides allowed to be used on cannabis”. See, NRS 586.550(2). However, the Nevada Department of Agriculture has only released a list of active ingredients in pesticides it deems “not prohibited” for use on cannabis, not a specific list of products. See, (Department of Agriculture) The CCB has also released a monitoring list of pesticides and plant growth regulators. See, (Cannabis Compliance Board Monitoring List for Pest Control Substances and Plant Growth Regulators). The monitoring list mandates the analytes and action levels that cannabis testing laboratories must test for in Nevada.

Summary of the Problem:

Cannabis remains federally illegal. Consequently, there are no pesticides approved for use on cannabis under FIFRA. The major problem for the cannabis industry is that the NDA has released a list of active ingredients rather than a list of specific products that are permissible to be used on cannabis.

Cultivators are stuck having to search for pesticide products that contain a “not prohibited” active ingredient on the NDA list, then try to read confusing and sometimes contradictory product labels to determine if the pesticide is permissible for use on cannabis in Nevada at their particular site, which is usually indoors. If they pick the wrong product, it creates several problems:

Foremost is risk to public health and safety; if a cultivator uses an unapproved pesticide, but its product still passes final testing, the product will be sold to the public potentially allowing unsafe products to be used.

Second, there is a severe economic factor. If a cultivator sprays the pesticide on its mother plants (from which clones are then taken), the CCB treats all cannabis and cannabis products produced from the treated plants as being tainted. I call this “fruit of the poisonous tree”. Thus, all cannabis plants, cannabis, and cannabis products, must be placed on administrative hold, quarantined, recalled, and ultimately destroyed. When this happens, the number of plants and products often reaches into the thousands and requires a massive recall effort that places an enormous burden on the cultivator, the downstream purchasers, and the CCB.

THERE IS NO OPTION TO REMEDIATE CANNABIS THAT HAS BEEN TREATED WITH AN UNAPPROVED PESTICIDE UNDER NEVADA LAW OR REGULATIONS.

The loss to a cultivator that sprays an unapproved pesticide on its plants can be catastrophic. If the mother plants were sprayed, they often have to destroy every single plant in their facility, from mothers, to clones, vegetative plants and plants in flowering. This results in the destruction of valuable plants, genetics, finished cannabis products, and sets the facility back months of time and revenue. The economic loss can be measured in the millions of dollars including lost tax revenue. Moreover, they are open to claims for damages from downstream purchasers and consumers.

So what should cultivators do?

When considering which pesticides to use, first and foremost, read the entire label of any product BEFORE you use it in your facility. Make sure your certified pesticide applicator reviews and understands all labels before products are brought into your facility. Remember, plant growth regulators are pesticides too, as are many cleaning products. Most product labels are available on the manufacturer’s website, or are registered with the United States Environmental Protection Agency. You can search for products registered with the EPA (available here). Remember, many products come in several formulations that are not interchangeable (e.g. residential use vs. commercial use), make sure you are getting the correct product and never try to substitute one for another.

Check the active ingredients in the specific product to ensure they are on the NDA list. If the product contains an active ingredient that is not on the NDA list, it is not permitted for use on cannabis in Nevada.

Check the Nevada Pesticide Registry (available here) to ensure that the product is registered for use in Nevada. If the product is not registered with the NDA, it is not permitted to be used in Nevada.

Check the label to make sure it is approved for use at your type of facility. Indoor cannabis cultivations are treated as “greenhouses” for purposes of pesticide labeling. Make sure that the product is approved for use indoors if you have an indoor facility. Remember, greenhouses, hoophouses, and other fully or partially enclosed structures are treated as “indoor” facilities. If you are one of the rare outdoor facilities in Nevada, make sure you the product is approved for outdoor use. Using a product that is not approved for use at the site of application is a violation of law and will be treated as an improper use of a pesticide.

Check to ensure that the product’s label permits its use on a crop intended for human consumption at the site of application. This is where people make a lot of mistakes; you need to be sure that the product is both permitted for use at your site (e.g. indoor) AND approved for use on products people are going to consume. IF the product is only approved for use on decorative shrubs grown indoors, and not food crops, it is not permitted to be used on cannabis – even if it is approved for use on edible crops grown outdoors. It is critical that you read and understand the entire label, which are often confusing.

Next, check to see if there are any specific instructions or restrictions on the product label. For example, some products have restrictions on the number of times it may be used, e.g. not more than X number of times per year, or no more than X consecutive days. Be sure to understand and adhere to the restricted entry intervals and worker protection standards as well. Some products cannot be used at the same time other types of products, other products may not be used via certain application methods (e.g. via drip irrigation). Make sure the product is intended to be used on the problem or infestation you are trying to treat, even in preventative applications. Failing to strictly adhere to ALL requirements on a product label can be considered the improper use of a pesticide.

Finally, if after reviewing all of the above you still aren’t sure, reach out to the CCB or NDA for guidance BEFORE you apply the product. While both agencies have been reluctant to “approve” the use of specific products it doesn’t hurt to try, at least to establish a record. Ultimately, unless you are 100% sure that a pesticide meets all of Nevada’s legal requirements for use on cannabis at your facility, don’t use it.

Operating a cannabis business in Nevada means staying ahead of complex and changing regulations. If you have questions about pesticide compliance or face a potential violation, consult with a cannabis business attorney to protect your license and your investment. Contact Connor & Connor