In June, a statement of claim for a $500-million class-action lawsuit sent shockwaves across North America’s legal cannabis markets. Filed in Calgary, Alberta, the lawsuit alleges that seven of Canada’s largest licensed cannabis producers (known as LPs) sold numerous cannabis-oil products whose active cannabinoid (THC and CBD) content was “drastically different” than the amounts listed on product packaging. Some products contained as little as 54% of the THC or 51% of the CBD they were listed to contain, while others contained as much as 118.5% of the listed THC.
The suit’s statement of claim argues that many of the cannabis oils in question were sold to consumers in containers such as plastic bottles or those with caps that may have rapidly absorbed or degraded the THC or CBD content within them.
The class-action suit has not yet been certified by a judge, but industry discussion that followed news of its filing was concerned less with the potential lawsuit and far more with the possibility that the plaintiff may be broadly correct in finding that cannabis oil products lose cannabinoids to plastic packaging. If that’s true, it’s bad news for producers of consumer cannabis oils (which occupy a tiny market share), but it’s far worse news for Canada’s burgeoning cannabis beverage market—and the legal market for cannabis and cannabis beverages that many analysts expect will open federally across the United States within the next few years.
Cans and Chemistry
Worries about changes to cannabinoid potency have been active since before the class-action suit. Canada’s largest LP, Canopy Growth, has long signalled its intention to focus on cannabis beverages. Last fall, ahead of Canada’s second phase of legalization (allowing cannabis foods, beverages, extracts, and topical products), the company held a lavish pre-launch for its slate of 16 infused beverages and edibles, due to go on sale in mid-December 2019. After the drinks didn’t appear before Christmas, Canopy stunned the industry in January 2020 by pushing back its beverage-portfolio launch. Despite being backed by a $4 billion investment from U.S. beverage conglomerate Constellation Brands, Canopy ran up against the same problem raised in the class-action suit: The cannabinoid potency in their beverages wouldn’t remain stable.
“There is an interplay with the cans and the chemistry in the drink itself,” Canopy Growth CEO David Klein told Yahoo Finance.
Lagunitas Brewing Company, in Petaluma, Calif., determined that a similar problem with potency loss in its Hi-Fi Hops cannabis beers was connected to plastic can liners. Others say the problem is the products themselves. Either way, cannabis products housed inside plastic-lined cans, plastic bottles, and plastic jars tend sometimes to lose the potency of their cannabinoids—the active ingredients in cannabis products.
Though there are more than 60 cannabinoids that exist in the cannabis plant, the two that appear in the highest doses at present are THC (responsible for the “high” associated with cannabis) and CBD (a non-intoxicating compound with various medical effects). Like all cannabinoids, THC and CBD appear as waxy compounds.
“Cannabinoids aren’t water soluble, and the beverages they’re trying to put them into are basically water,” says chemist Mark Scialdone, PhD, chief science officer for Connecticut’s BR Brands, which offers a portfolio of cannabis products. “That’s why the drinks are losing potency to the side of the can: For cannabinoids, it’s a low-energy pathway. Given the opportunity, cannabinoids would rather stick to the liner of the can than to be in the drink the person’s consuming.”
Dr. Scialdone says that cannabis drinks require cannabinoid oils to be suspended in an emulsion soluble in beverages—but such emulsions are in their very early days. For Dr. Scialdone, the best emulsion to compare these beverages with is milk, which contains fat emulsified by milk’s naturally occurring glycolipids, which prevent the fat from separating out. By comparison, existing cannabinoid emulsions are nowhere near as stable as milk, largely because cannabinoids such as THC and CBD are very hydrophobic.
“It’s very rare in a soda or a beverage product to have a compound with such a hydrophobic load like the cannabinoid,” Dr. Scialdone says. This is a problem because can liners are equally hydrophobic, and “like dissolves like,” so the less stable the emulsion, the likelier it is for its cannabinoids to leach into can linings. He notes that beverages could instead be sold in glass bottles, but that might not be desirable to producers for a variety of reasons, including an increased cost.
Product Quality
A deeper problem, says Harold Han, PhD, is the quality of the beverage base into which the emulsions are being dissolved. Dr. Han, founder and chief science officer of California-based cannabis-infusion specialist Vertosa, says compatibility between beverage base and emulsifier is a physical issue.
“Some companies say they’ve solved the water-solubility issue,” Dr. Han says. “Yes, you can dissolve many [cannabinoid] emulsions into pure water. It dissolves fast, the flavor is pretty good, and it has pretty good onset. But the water isn’t your product; your product is coffee, juice, apple cider vinegar, red wine, rosé. Those products themselves have complex chemistry, and you’re infusing an emulsion, which has a complex chemistry also.”
Potency, says Dr. Scialdone, is the No. 1 most-desirable attribute in a cannabis product, but maintaining potency may negatively affect important factors in a beverage, such as flavor or mouthfeel. Yet Dr. Han stresses that maintaining potency requires controlling chemical as much as physical factors. “Chemically, THC has a structure that oxidizes easily, turning it into [non-psychoactive cannabinoid] cannabinol (CBN),” Dr. Han says. “You lose potency that way. To mitigate that, if you’re producing a THC-infused beverage, how are you going to control the oxygen levels in the package? If you can’t eliminate it, what kind of antioxidant mechanisms can you embed or design to fight oxidation?”
For this reason, Dr. Han says, it’s much easier to make a THC-infused soda water than it is to make a THC-infused rosé, which he calls “a complex system.”
“Rosé is from the grape, and it’s fermented,” Dr. Han says. “It has proteins, it has iron, which tends to accelerate oxidation. You may then need to think about how to fight that oxidation.”
That’s before the more pressing problem of sticky cannabinoids exiting their emulsions to cling to hydrophobic plastic—a problem Dr. Han says can be exacerbated by the high heat and pressure thermal processing required to kill microbes and prolong shelf life. “This is not rocket science,” he says, “but it’s a special science. It’s complex. Inventing an emulsion is easy. What’s hard is stably putting it into a base.”
As a problem, the loss of cannabinoid potency is an indicator of how incredibly new legal cannabis products are. Legal cannabis beverages have existed for fewer than five years, and, on the illicit market prior to state-level legalization in the U.S., they barely existed at all.
Dr. Scialdone, who spent 25 years as a chemist for DuPont, sees unstable cannabinoid levels as the result of hurried product development. “Typically, what happens in the cannabis industry is they don’t really do the full development of the product; they just try to rush it out the door as quickly as they can in order to recoup some of the dollars they’ve spent on doing so.”
Product development, Dr. Scialdone says, is expensive, and it can take a multitude of iterations to arrive at a commercial formulation even before companies begin testing the product in a can.
“It’s a difficult process when you’re trying to do product development and product launch simultaneously,” Dr. Scialdone says, but that’s essentially what producers have been forced to do in their haste to be first-to-market with infused beverages. “In product development, you want to fail early and often in the prototype development stage. [If] you fail in the marketplace after you’ve put a bunch of products out there and find out you’re losing potency on millions of units sitting on shelves and in warehouses, that’s an expensive failure.”
What the Future Holds
However, Dr. Scialdone is optimistic about the future of cannabis-infused beverages, provided a few factors in the industry change. First among them, he says, is the lingering stigma traditional businesses feel in working with cannabis companies. In Canada much of this stigma seemed to disappear after legalization, but he says it remains a problem in the U.S., where cannabis is still federally illegal. That stigma is changing, however, with each new state that votes to legalize medical and adult-use cannabis. Many expect some form of federal cannabis legalization within the next few years. As the stigma begins to thaw, Dr. Scialdone sees hope for partnerships with traditional food packagers and aluminium manufacturers he believes will resolve other factors that might hobble the rollout of cannabis beverages. Most of these stem from the disconnection between cannabis producers and traditional food and beverage producers.
“There are packaging needs in the cannabis industry that are unmet, and other industries don’t have the answers to them,” Dr. Scialdone says. “This is one of those. It’s almost like they need to develop a new can just for the cannabinoids industry because of this problem. I’d like to think if the right company saw this as the right opportunity to innovate and come up with a can that solves this problem, they’d have an immediate market. I would believe there’s a liner out there that works better than existing liners. But this is outside the supply chain of the cannabis industry; we need to go with what cans large vendors are providing us. They’re not providing cans with customized solutions for maintaining cannabinoid potency.”
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