Will California Cannabis Companies be Required to Submit all Packaging for Pre-Approval?

After California voters approved Proposition 64 in November of 2016, several laws relating to cannabis changed immediately, many laws will remain unchanged until 2018, and still other laws remain in a “grey area.” One of the those “grey areas” is how exactly California will handle the laws surrounding labeling of edible cannabis products. 

In January 2017, Assemblymember Ed Chau of California’s 49th District introduced AB 175, a bill that, if passed, would require a manufacturer to submit all packaging and labeling to the Bureau of Marijuana Control for approval prior to introducing any edible marijuana product into commerce in California. Additionally, any time a manufacturer proposes to make a material change to the packaging or labeling of an edible marijuana product, that packaging and labeling must be submitted to the Bureau for another review. 

According to the proponents of the bill, it is necessary to require this level of review and scrutiny of infused cannabis edibles for the safety of children. Colorado and Washington regulators have wrestled with these concerns for years, citing packaging that appeals to children as one of the primary drivers of young kids' accidental ingestion of cannabis-infused edible products. The bill instructs the Bureau to determine whether the packaging and labeling are in compliance with requirements that the packaging be child resistant and not attractive to children. The bill's authors note that Washington requires the state liquor control board to approve the labeling and packaging for all marijuana infused products prior to marijuana manufacturers offering these items for sale in retail stores.

One potential issue critics have identified with the bill is the substantial delay that many manufacturers may face. The bill provides that the Bureau has up to 90 days (60 days plus an additional 30) to make its initial determination. After each noncompliance notice and resubmission by the manufacturer, the Bureau will have another 30 days to review the packaging and labeling.  Only after two noncompliance notices may the manufacturer request an administrative hearing. At a minimum, this approval process could take two to three months with the potential to drag on for a year or longer. 

Another issue could be the subjectivity of the requirements with which manufacturers will have to comply in order for their product not to be attractive to children. Child-resistant packaging standards already exist, making this component of the bill a bit redundant. But determining what might "appeal" to children is a murkier matter. The Medical Marijuana Regulation and Safety Act of 2015 requires any cannabis products used for medicinal purposes to have affixed labels that are not made attractive to children but what precisely this requires remains unclear. Some standards have been developed in other contexts -- for example the Children's Online Privacy Protection Act gives examples of what makes a website child-friendly -- but we cannot say at this juncture whether these same standards will apply for products. Will certain colors be prohibited? What about a cartoon characters? Without clearer guidance, manufacturers may find it difficult to determine in advance of submitting their packaging for review whether it is likely to be accepted.

Finally, as the bill stands now it does not say that manufacturers have to wait for approval before marketing, only that one has to submit the packaging to the Bureau. There is a potential here that manufacturers will begin to market their product before label approval, and if it is ultimately rejected this will result in both a business waste and harm to consumers who are expecting one product label and receive another. 

The bill is not expected to be heard in a policy committee until late March. You can comment on the bill here under the “Comments to Author” tab (Please note: though it does not take long, you will have to create an account or sign in to comment). You can find your representative assembly member and voice your concern directly to him or her here. This blog will continue to follow any developments and report on them in due course.