CA Health and Safety Warning Laws Have Changed: Are You In Compliance?
On January 3, a new mandate for California Proposition 65 came into effect, requiring health warning labels on all cannabis products sold in the state. Failure to comply with the requirements can and will lead to enforcement against cannabis producers and sellers, resulting in heavy penalties. Here’s what you need to know.
Some background information on Proposition 65 and cannabis
California Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act 1986, requires various parties in the consumer product supply chain to issue significant warnings about products they sell in the state if they are exposed to certain chemicals in those products Risk of cancer or reproductive harm. Proposal 65 applies to any company that sells products in California, whether that company is headquartered or manufactures products in California.
This is an example of a Prop 65 warning sign. They may look familiar to me because we see them frequently on many common goods and products.
“Cannabis (marijuana) smoke” was listed under Proposition 65 in 2009 because it may contain ingredients or emit chemicals known to cause cancer. These chemicals include toxins like arsenic, benzene, cadmium, formaldehyde, lead, and nickel. In January 2020, delta-9-tetrahydrocannabinol (THC) was added to Proposition 65’s list of toxic chemicals because THC can potentially cause reproductive harm. Now both THC and cannabis smoke are listed under Proposition 65 and require warning signs.
What this means for you and your company
The updated list of chemicals, which includes THC, went into effect on January 3, 2021. So if you haven’t met them yet, the clock is ticking to meet the requirements. Many cannabis companies selling in California are already complying with Proposition 65 by including warnings on their products that emit cannabis smoke. Now, companies that previously issued a consumer warning regarding cannabis smoke need to expand their warnings to include both the potential risk of cancer and the potential risk of reproductive harm. In addition, products that previously did not require a cannabis smoke warning are now subject to Proposition 65 for exposure to THC.
The listing of THC implies a wider range of cannabis products as it affects all products that contain detectable levels of THC, including products that contain less than 0.3% THC as per the 2018 Farm Bill. Under the THC list A wide range of cannabis and hemp CBD products, including smoke-free products such as foods, topical products, and other concentrates, are subject to Proposition 65 labeling requirements.
The agency overseeing Proposition 65 has set safe harbor levels for many publicly traded chemicals, which allow companies to forego a warning label if exposure to the chemical occurs at or below a certain threshold. However, no safe harbor has been set for cannabis smoke or THC. Therefore, the company must determine whether the chemical content poses a significant risk to the consumer. This determination usually requires extensive and costly testing that is impractical for most organizations. Therefore, the parties in the cannabis supply chain should work to properly label all cannabis products at this point. Failure to do so is risky. Proposition 65 “Bounty Hunters” work with individuals to enforce Proposition 65 by sending notifications of violations and then often filing lawsuits against companies they believe are violating the law. Many of these claims and litigation are resolved because the cost of litigation is high. However, unwinding can also be expensive.