California’s three state cannabis licensing authorities, the Bureau of Cannabis Control, the California Department of Public Health and the California Department of Food and Agriculture, proposed new regulations in the California Regulatory Notice Register on July 13, 2018. This was the first step toward adopting non-emergency regulations and opened the 45-day public comment period required in the formal rulemaking process.
It is important to note that the proposed regulations are not yet formally adopted and, until the rulemaking process is complete, the emergency regulations under which cannabis businesses currently operate will remain in effect.
Here we address some pertinent changes in the proposed regulations with respect to labeling, packaging and advertising compliance.
The proposed regulations clarify certain requirements relating to information found on the “primary panel” of the label. For instance, the net weight displayed on any package of dried flower will no longer be considered inaccurate if the actual weight is within 2.5% of the label weight listed. Likewise, display specifications for total THC and CBD content have been augmented such that edible products, concentrates, pre-rolls, and flower are all now specifically addressed. The proposed regulations also finally provide instruction for labeling of cannabis products with multiple separable layers of packaging, by requiring that both the exterior and interior containers for edibles, topicals, suppositories, and concentrates include primary panel label requirements. Furthermore, inner packaging for inhaled products must now include the universal cannabis symbol.
The most impactful change with respect to packaging and labeling is proposed language allowing the statutory requirement for child-resistant packaging to be fulfilled via exit packaging provided by the retailer, rather than via individual product packaging provided by the manufacturer or other upstream operators. This shift in burden will surely cut costs in the long run, although many manufacturers are presently grinding their teeth over precious startup funds spent on soon-to-be unnecessary packaging compliance. Another less impactful change allows orally-dissolving edibles intended for sale in the medicinal market to contain up to 500 milligrams per package.
The proposed language for certain advertising regulations helps to interpret prohibitions and requirements for cannabis operators. Specifically, the language better defines what constitutes “reliable up-to-date audience composition data,” a term used as a calculation tool for the requirement that an advertisement be displayed where it is reasonably expected that 71.6 % of the audience is over the age of 21. Another elaboration clarifies a prohibition on advertising techniques that may be attractive to children (e.g. involvement of toys, inflatables, movie characters, cartoons, etc.). Finally, cannabis operators are not allowed to advertise free cannabis goods or giveaways for any type of product.
While some adjustments may be required during this time of transition, hopefully these proposed changes will not be too earth-shattering for most cannabis operators when it comes to legally packaging and marketing their product. Again, it is important to recognize that for the time being the emergency regulations still dictate proper cannabis compliance, and that the language of the draft regulations is still subject to change between now and the time of adoption (standing deadline of January 1, 2019). Given the changing landscape, staying conservative with regards to the size of print orders is advisable. As before, we recommend flexibility, judiciousness and the review of materials by legal counsel to assure continuing compliance.
For more information on this and related topics, or to setup a free consultation, please contact the Law Offices of James P. Marion, Esq
Disclaimer: This article is intended to provide general information only, and should not be construed as formal legal advice or the formation of an attorney-client relationship. You should not act or refrain from acting based on the materials contained herein and The Law Offices of James P. Marion, Esq. explicitly disclaims any liability for your action or inaction based on the contents of this article.