Colorado regulators now concede that so much contaminated marijuana has made its way to the state’s retail shops that they must create a surveillance program for off-the-shelf testing of products to protect consumers.

“We know that there are contaminated products that are targeting consumers,” said Heather Krug, a regulatory programs branch chief at the laboratory at the Colorado Department of Public Health and Environment, adding that state health recall advisories confirmed problems exist with current safety protocols.

Krug made her statement during a meeting of the Science and Policy Forum work group, a state advisory committee for the marijuana industry, co-hosted last Friday by Colorado’s Marijuana Enforcement Division (MED) and the state health agency.

During the meeting, she and Kyle Lambert, deputy director of MED, unveiled plans by state regulators to create a new testing program for products in marijuana shops.

The announcement of a plan for off-the-shelf testing follows an investigative report by The Denver Gazette that found consumer risk due to a safety system riddled with loopholes that marijuana cultivators, testing facilities and manufacturers exploit.

“The MED and the CDPHE believe a well-executed surveillance testing program would have a real positive impact on public safety and heightened compliance with testing regulations,” Lambert said. “We’ve also heard from licensees in this forum and other forums about the benefits and importance of such a program.”

Despite continuing concerns, the rollout of an off-the-shelf testing program appears to be months, if not more than a year away. Lambert said state regulators still are studying how to put in place new safety protocols through such a program and are seeking additional stakeholder feedback on how the program would work.

Still up for debate are whether the new program would also involve state sanctions for findings of contaminated products or if regulators would simply use such findings to steer license holders toward compliance.

“We have not, to this point, fully developed a comprehensive surveillance testing program that could be implemented in an efficient manner with existing resources,” Lambert said.

Marco Troiani, chief executive officer of Oakland, Calif.-based Digamma Consulting, which specializes in laboratory testing of marijuana, urged during the forum that industry players get a chance to come into compliance once a new testing program is put in place.

“A lot of states have wrestled with what happens when two-thirds of samples are not in compliance,” Troiani said. “We can’t shut down two-thirds of an active market.”

Troiani added: “It’s not good when two-thirds of the product stops reaching the shelves, and it creates market disruption, which is best avoided.”

The Colorado State Auditor’s Office also has agreed to legislative requests to research how to conduct a performance audit to determine the adequacy of current protections for consumers.

The movement by state officials follows years of complaints that the current regulatory system is rife with fraud that allows contaminated marijuana products, primarily with high levels of mold and yeast but also hazardous pesticides and chemicals, to find their way to shops.

One key criticism for years is that marijuana cultivators and manufacturers are allowed to prepare their own samples for testing by state-sanctioned private labs. That system allows rogue cultivators to preselect pristine samples while withholding contaminated products they send on to retail shops, regulatory administrative findings have shown.

In addition, cultivators and manufacturers select the private testing labs they want to test their marijuana.

State-maintained testing reviewed by The Denver Gazette reveals irregularities that suggest possible manipulation.

The investigation also found state officials have issued health and safety recalls more than 40 times in the past three years, but when such problems are found and a recall is needed, the average time from the first sale to when a recall is issued is nine months.

Justin Singer, who makes edible marijuana products in Colorado under the names Ripple and Ript, urged regulators to move quickly because he remains concerned the public is at risk.

“The threshold question, I think, of why this is taking so long is, is there a problem or not?” Justin asked during the meeting. “And, if there’s a problem, then there should be a lot more urgency there.”

Singer conducted his own off-the-shelf testing of marijuana products independent of state regulators because of his concerns. He had people buy 15 different marijuana products from dispensary shelves and had them tested at a lab. His testing found four products would have failed state limits for yeasts and mold, one by more than six times the legal limit.

Singer said those that fail off-the-shelf testing should have consequences: “I’m second to none in my belief that bad products should be pulled off shelves and anybody who violates or adulterates samples should get a lifetime ban from this industry.”

Singer urged the state to also consider ways to ensure cultivators can’t manipulate any new testing program, given the track record that shows rogue cultivators clearly have exploited existing loopholes. He said the MED should be the ones buying the product that gets tested, not private actors.

Lambert said during the meeting that if the new program is strictly run and operated by MED, sufficient resources aren’t available for a robust off-the-shelf testing program.

“If MED staff are the only people that are collecting samples and submitting them as part of the surveillance or survey or surveillance testing program, it is going to be a much more limited scope.”

Justin Trouard, owner of the largest marijuana cultivator in the state, Mammoth Farms, has filed a lawsuit, asking Denver District Court Judge Jill Dorancy to force state regulators to overhaul testing rules.

Trouard claims chemically converted hemp-derived THC products have illegally flooded the state’s legal markets. Trouard in a recent court hearing said bad actors in the industry are using synthetic THC to cut corners and increase profits. He said the THC products derived from hemp often are made with dangerous chemicals, such as methylene chloride, a product so toxic it has been banned for most uses by the U.S. Environmental Protection Agency.

Dorancy, at the end of a recent court hearing, said she may toss out Mammoth Farms’ lawsuit, because she believes the cultivator firm must first formally petition the state for specific rulemaking around expanded testing.

The judge still has not issued a final ruling.