Marijuana Product Packaging And Consumer Protection: New Regulations Nationwide

child-resistant-packaging

By Chris Lynch | NWMJ Law PLLC

OREGON: On October 1, 2016, Oregon issued its first licenses to recreational marijuana retailers. October 1st was also the date that all Oregon Health Authority (OHA) and all Oregon Liquor Control Commission (OLCC) licensees responsible for packaging marijuana products for sale to a consumer must adopt and utilize OLCC approved packaging and labeling. If the packing and labeling has not been pre-approved, no licensees will be able to sell any products using non-conforming packaging or labeling, including businesses currently operating legally under the OHA system.  The fact that Oregon issued its first recreational licenses under the OLCC is significant because the new packaging rules apply to all licensees, whether they are under the medicinal system (OHA), or the new recreational system (OLCC), which has only just started issuing licenses.

The new Oregon rules on packaging and labeling are comprehensive and very detailed, so make sure that you thoroughly review the rules before making a submission to the OLCC if you operate in Oregon. Generally, however, the new rules require that each container: (1) must be child-resistant and not attractive to minors (2) must protect the items it holds; and (3) must not contain false or misleading statements. Additionally, products that are dispensed at the point of sale must be placed in a child proof exit package that is capable of being resealed and made childproof again after it has been opened, has been certified by a qualified third-party testing firm. The labeling requirements are equally as comprehensive, and require information including, but not limited to, the business name, date of harvest or date of making, net weight, concentration, additives, name of the lab that performed the tests on the product, activation time, universal (THC or CBD) symbols, and warnings.

Oregon, however, is not the only state to update their packaging and labeling requirements in October. Washington filed in September new product compliance rules that go into effect in October, and identical emergency rules to fill the gap in the rules that went into immediate effect that require new labeling on all marijuana products, and the inclusion of three new General Use, High THC, or High CBD warnings labels that must be affixed to every product. Similarly, Colorado put into effect a regulation on October 1st that requires that all edibles sold in dispensaries must be marked with the “universal symbol” that denotes the presence of THC in the product (the mark is a small red and white square with a “!” and THC written inside it), as well as an equivalency measurement between flower, concentrates, or edibles, to show how much the user is consuming or purchasing.

Each of the recreational marijuana states have passed similar restrictions regarding packaging and labeling requirements now, emphasizing that the products (or at least their packaging) cannot be attractive to children and need to be in child-resistant packaging, and need to include health warnings.[1] Washington state is the most strict of all the recreational states, although it does not require childproof exit-packaging, like Oregon, Colorado and Alaska.

Although the changes will certainly be costly, forcing nationwide industry packaging renovations, the states are worried about consumer protection issues (both Washington and Colorado have seen increased consumer protection concerns, and made the changes citing the increased number of children admitted to hospitals for marijuana consumption.)[2] The effectiveness of the regulations, however, will likely depend on how the systems are set up in each state, and how much freedom the industry has within that system.

Packaging Systems and Their Effect on Regulation

Generally speaking, there seem to be two kinds of emergent packaging system across the legalized marijuana industry: off-site and on-site retail packaging. Think of off-site packaging as analogous to a liquor store model, where the product is packaged off-site by the producer, and then is merely sold in retail stores, whereas on-site packaging resembles a brewery model, where the product is packaged at the brewery (in, for example, a growler), which is then available for sale on-site. Currently, Washington State is the only recreational market that utilizes the off-site model, with every other state that has legalized recreational use is using the on-site model (including California, who is yet to legalize recreational, but is leaning towards the use of the on-site model). The on-site model predominantly uses exit packaging, which is used at the point of sale to create child-resistant and unappealing packaging for all marijuana products.

The changes to the packaging and labeling for marijuana products nationwide, though expensive, are promising steps in ensuring the safety of products and protecting consumers. How the differences in packaging regulation affect the market remains to be seen, but it does not seem likely that sales will slow down in any of the recreational states; both Colorado and Washington flirted with 1 billion dollars in sales last year, and each of the recreational states has amassed hundreds of thousands of dollars in tax revenue in the fiscal year. With Oregon’s recreational market going into full swing this month this data is not likely to change. However, only time will tell whether or not the steps Oregon and the other states have taken are the best means to protect consumers and their children from accidental ingestion of marijuana products.

 

[1] Much of this can be attributed not only to consumer protection laws, but also to the 2013 Cole Memorandum, which states that among the 8 priorities, states that legalize marijuana needed to keep product out of the hands of children and to reduce the risk of drugged driving, or risk federal prosecution. For more on this, please see: https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf

[2] The Denver Post reported that only 8 children were admitted to the Children’s Hospital Colorado emergency department between 2005 and 2013, but in the first half of 2016, 9 children between 3 and 7 were admitted to the hospital for marijuana consumption.

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