The latest in California marijuana regulations could cost the industry thousands of dollars in legal fines and fees, according to Lara DeCaro, a partner at Leland, Parachini, Steinberg, Matzger & Melnick in San Francisco.
As of Jan. 1, the mandate requires that all marijuana and THC products to include health risks on labels, under Prop 65, a longstanding requirement that any product containing cancerous chemicals or a history of causing birth defects be required to carry a warning label.
Marijuana smoke and THC were deemed "reproductive toxins" last year.
DeCaro said that the biggest impact of Prop 65 in the marijuana industry will likely be attorneys and citizens seeking out products whose labels violate the disclosure rule, and filing suits against the marijuana product's producer. She expects lawsuits over last year's finding.
"Some attorneys will always just go for the latest 'low hanging fruit,' whatever that may be," DeCaro said. "The facts that violations are tied to statutory fines and that attorneys’ fees are all but guaranteed make these claims very easy money from targets who might not be paying strict attention."
DeCaro recommends marijuana companies carefully study their product packaging and supply agreements, and then put together a compliance plan for those products.
She also encourages producers to follow legislative developments.
"Clients and their counsel can and should sign up for alerts from [the Office of Environmental Health Hazard Assessment], among other regulatory agencies, and create Google alerts for the issues that will impact their business to stay up to date," DeCaro told Northern California Record. "You need to stay up to date on what’s going on with the rules and regulations that affect your clients, and how they are touching others in their industry, to watch for patterns and developments."
With the short-form warning labels seeming to undermine the intent of Prop 65 to offer meaningful notice to consumers about potentially harmful substances, the OEHHA has issued a noticed of proposed rule-making to address the matter, and will be hearing public comment on the proposed rules until early March.
"Manufacturers using the short-form warning on their products should look into how that could affect them," DeCaro said. She noted there are multiple ways to follow the mandate, and a compliance specialist can assist marijuana companies with that.
DeCaro, who has been representing the California marijuana industry for more than a decade, recommends cannabis producers understand their compliance requirements as soon as possible, since the law's one-year grace period for enforcement expired in January.
"While many see it as ironic or simply wrong, marijuana smoke has been on the list as a 'known carcinogen' since 2009, so seeing Prop 65 warnings on cannabis products is nothing new," she said.
"In 2018, certain amendments to Prop 65 shifted warning requirements. Also, marijuana smoke and [THC] were added to the list of chemicals 'known to cause birth defects or reproductive harm, effective as of January 2020. There was a one-year grace period for enforcement so it isn’t a new law, just newly enforceable as of Jan. 3 of this year. By that date, companies operating in the cannabis and hemp industries should have had their warning requirements updated to reflect those listings."