The California Bureau of Cannabis Control (BCC) along with the Departments of Public Health and Food & Agriculture issued emergency regulations to fully implement the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) and provide guidance for California cannabis businesses heading into 2018.
We have focused on the select regulations to generally determine how cannabis businesses will be affected as to:
- Product Recall
Packaging and labeling requirements included in the regulations issued by the Department of Public Health require two types of labels for all cannabis products: primary panel and informational panel.
The “primary panel” is defined as the part of a label that is most likely to be displayed, presented, shown, or reviewed by a customer at the point of retail sale. The primary panel requires multiple data points, for example: the type of cannabis/cannabis product, total milligrams of THC and/or CBD, and the universal symbol for cannabis:
All text on the primary panel must be at least size 6pt font, but may require a larger font size so the primary panel is “in relation” to the size of the container.
The “informational panel” means any part of the label that is not the primary panel. The informational panel must present the requisite warning language as well as other required labeling information, including nutritional information for edibles. Information required by MAUCRSA or by the emergency regulations not specifically designated to the primary panel belongs in the informational panel.
All text in the informational panel must be at least size 6pt font, but may require a larger font size so the informational panel is “in relation” to the size of the primary panel and container.
If there is not enough room on the container to print all the required information in 6pt font, only the warning statements must be on the informational panel in at least 6pt font. The remainder of the required information must be presented on a supplemental label on the package (not in the package). The text for the supplemental label cannot be less than 8pt font.
MAUCRSA and the regulations make determining what information is and is not required, and where such information must be located a complex and tiresome task. Not to mention that certain cities such as Berkeley, San Francisco, and San Jose have their own additional packaging and labeling requirements.
Evoke Law can provide comprehensive packaging and labeling review and individualized guidance to ensure total compliance.
While MAUCRSA and the emergency regulations do not specifically address trademarks or branding, there is language about the prohibition of products and packaging being “attractive to children,” which necessarily impacts branding decisions.
The Department of Public Health’s regulations clarify that CA considers the following content attractive to individuals under the age of 21:
- Any likeness to images, characters, or phrases that are popularly used to advertise to children;
- Any imitation of non-cannabis candy packaging or labeling; or
- The terms “candy” or “candies.”
The Department also prohibits edible cannabis products that it determines are “easily confused with commercially available foods without cannabis.” In addition to the Department being the arbiter of a seemingly subjective standard, there is further ambiguity as this regulation could be interpreted in multiple ways:
(1) Does it apply to the similarity of commercial foods both in name and in product type? (e.g., Cheetos v. Weetos)
(2) Does it apply to the similarity of the product type regardless of the name? (e.g., Killer Fish v. Goldfish)
(3) Does it apply to the similarity of brand names for an edible when only the name is similar to the brand name of a different type of non-cannabis product? A hypothetical example: OOMPA for a cannabis infused chocolate v. OOMPA for a non-cannabis cereal.
In addition to MAUCRSA’s requirements that all cannabis advertising only being displayed where at least 71.6% of the audience is expected to be over 21, the BCC’s regulations require that businesses use an age gate method prior to engaging in “direct, individualized communication,” to verify that the recipient is 21 or older. This age gate requirement includes websites as well as targeted email advertising.
The Department of Health regulations requires that manufacturers of cannabis products must establish and implement written recall procedures for products that are determined to be misbranded or adulterated. Such procedures must include factors that necessitate a recall, designate personnel responsible for implementing the recall procedures, and notification protocols.
Transitional Period: January 1–July 1, 2018
To allow for the transition, until July 1, 2018, the BCC will allow the sale of cannabis and cannabis products that do not meet the labeling requirements so long as (1) the cannabis or cannabis products were manufactured/packaged prior to January 1, and (2) so long as it has a sticker with the applicable warning language.
Additionally, products that have not undergone laboratory testing may be transported and sold if a label stating that the products “have not been tested as required under Business and Professions Code section 26070(1)” is affixed to each package prior to sale.