The kosher industry should regulate American cannabis

A solution to the quality control problem.

American cannabis regulation is a mess. The FDA, which normally regulates food products, can’t do so for cannabis because it is still illegal on a federal level. States that have legalized cannabis do regulate it, but that regulation is patchy and varies wildly from state to state.

The result is that legally purchased cannabis products, no matter how nicely they are packaged or how clean the stores, can contain just about anything. Studies have shown that CBD frequently contains contaminants—including THC, which unlike CBD is psychoactive. Even if the products are properly prepared, the labels aren’t always reliable. A product that contains 10mg of CBD or THC could contain far more, far less, or none at all. Producers are supposed to do lab tests on every batch, but sometimes they get lazy and reuse the same test results for a series of batches. Multiple studies have shown that there is a serious quality control problem for both THC and CBD.

Things are even worse for Delta-8 THC, a synthetic product that is in a legal gray area and so is available even in states where Delta-9 THC (what is normally called just “THC”) is still illegal. The effects of this product are poorly understood, and because it is highly processed (there isn’t much of it in cannabis plants so it needs to be extracted) there are more opportunities for contamination. Nobody is monitoring this product at all.

Last year, I argued in the Forward that the solution to this problem is to use private regulation—specifically, the regulation provided by kosher certifiers. I want to summarize the argument, because it is still quite feasible.

1. The kosher industry already certifies cannabis products

In the second half of the 20th century, Orthodox rabbis were largely against the use of cannabis in any form. Today, that friction has lessened: yes, there is still some resistance to the use of THC products for recreational purposes, but the idea of “medical marijuana” has made it much easier for rabbis to sign off on certifying some cannabis products. These days all major American kosher certifiers will happily certify CBD products. The OU—largest certifier in the world—certifies a few medical THC products, and some smaller agencies even certify recreational THC products. Representatives for these agencies have told me that certification of recreational THC wasn’t going to proceed much further—but, as one insider told me, if there is certification on water and aluminum foil, there can and will be certification on anything.

2. Kosher supervision resembles state regulation, and for cannabis it’s sometimes more regular

When major kosher certifiers take on a new product, one of the basic conditions is that they must be able to make unannounced and unscheduled visits to the production facility. This is not dissimilar from the way that government regulation functions—but for cannabis products those state regulators don’t always show up regularly. One certifier told me that his agency visits plants in Oklahoma more than the state agencies do.

3. It wouldn’t be that hard

Quality control problems with cannabis crop up because there is insufficient monitoring of lab tests. At the moment kosher certifiers don’t ask for cannabis product lab tests; instead, they perform plant inspections, look at product formulas, and inspect purchase orders and invoices.

But imagine if they did ask for lab tests. That single change would make a world of difference, because it would mean that a consumer could trust that a kosher cannabis product (1) wasn’t contaminated and (2) actually contained the dosage of CBD and THC specified on the label. This single change would immediately signal to consumers that kosher cannabis could be trusted in an industry that has a trust problem.

4. Kosher certifiers should be more suspicious of cannabis producers anyway

In America, there’s an important interplay between Jewish regulation and state regulation of food. Famously, Rabbi Moshe Feinstein said that government regulation of milk was sufficient to determine that milk produced by gentiles did not need to be further monitored by Jews (although it could be if you wanted to be extra pious).

Today kosher certifiers calibrate how carefully they must monitor a food producer based on assumptions about how likely they are to try to cut corners or cheat outright. Restaurants, for example, are often subject to quite extreme regulation, especially if they are run by gentiles and serve meat. Manufacturers, on the other hand, receive relatively light supervision—but that’s because kosher certifiers make assumptions about the other ways that those companies are being monitored.

Those assumptions don’t apply to cannabis products, but kosher certifiers haven’t adapted to that reality. In order to make sure that the products really are kosher, they need to do more due diligence than usual—and that means checking that the companies are telling the truth about what is actually in their products. Properly calibrated, their interests should coincide nicely with the interests of American consumers.

4. Kosher certification is contagious

Kosher certification can only signal top-quality cannabis if it’s prevalent enough that people come to expect it. With so many producers this may seem hard to do, but it’s easier than you might think because of network effects.

Kosher symbols have appeared on American foods for the last 100 years, but those first few decades were choppy; it was hard to get manufacturers to want certification. In the 1960s the agencies figured out how to market certification better, and since then certification has snowballed.

Crucially, every new certification puts pressure on every other company in the supply chain. A chocolate brownie maker that wants certification needs its chocolate supplier to be kosher—and so the chocolate supplier, not wanting to lose business, will frequently apply for certification, as well. These days so many products are certified (perhaps up to 40% of all products in a typical grocery store) that much of the heavy lifting has been done already. New producers will sometimes find that all of their suppliers are already certified.

The cannabis industry has supply chains, too. In New York, Curaleaf has certified its whole supply chain. When Curaleaf sells marijuana flower to other producers in the state, those producers are already buying a kosher product. There is good reason to believe that kosher certification, marketed as a form of quality control, would quickly spread through the whole industry.

5. This is an easy PR win

There is an ongoing debate about whether kosher certification should ever be about anything beyond the narrow concerns of Jewish law—should it be about ethics, or healthy eating, or ethical management, etc. (If you’re interested in this debate I recently made a whole video about it for the Shalom Hartman Institute, where I work.) For the most part kosher certifiers have kept an extremely narrow focus, but the industry as a whole does want non-Jews to care about kosher certification, too, because it makes companies more likely to certify. Americans have a good association with the word “kosher,” and this would bolster that reputation in a way that has material benefits for all cannabis consumers.

The kosher industry isn’t known for its radical ideas. It works by doing one thing very well, without much fuss. But cannabis certification offers a rare but easy opportunity to do something good for American society as a whole. They should take up the opportunity.