California’s Proposed Packaging & Labeling Pre-Approval for Edible Cannabis Products (AB 175)

UPDATE: In mid-April, the Assembly Committee on Business & Professions heard from both proponents and opponents on the pending California Cannabis Edibles Packaging Bill; the Committee then approved the Bill and forwarded it on for review by the Committee on Health. Ms. Syzdek gives us an overview.

 

New packaging and labeling requirements for recreational cannabis were introduced by the California Assembly (AB 175) under the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) on January 17, 2017.

AUMA’s provisions already place restrictions on the packaging and labeling of cannabis products, specifically requiring that the packaging must be resealable, child resistant, and not attractive to children.

AB 175 would require manufacturers of edible cannabis products to submit their packaging and labeling to the Bureau of Marijuana Control (the “Bureau”) for approval prior to distribution in the market. The Bureau would determine whether the packaging and labeling are in compliance with AUMA’s provisions, including whether the packaging is child resistant and not attractive to children.

Of course, obtaining approval will not be free; the bill vaguely proposes that applicants would incur a cost “no greater than the amount required to cover the actual and reasonable costs of administering the approval program” — whatever that means.

Once an application is submitted, the Bureau would have 60 days to determine whether the packaging and labeling is compliant. If the Bureau has not made a determination within 60 days, the Bureau must notify the applicant of the delay and identify a date within the next 30 days when the determination will be made. Under this structure edibles manufacturers could be looking at nearly 90 days to initially receive approval of their packaging and labels.

What if the packaging and/or labeling is denied?

If the Bureau preliminarily determines that the package or label is not compliant, the applicant will have 60 days to redesign and submit new packaging for reassessment. The bill is silent as to whether there would be an additional reassessment fee. Once resubmitted, the Bureau would have only 30 days to make a further determination.

What if the packaging and/or labeling is denied again?

If the Bureau again finds the revised packaging or label non-compliant, the manufacturer may request an administrative hearing with the Bureau within 30 days from the Bureau’s notice. Again, there is no word on whether requesting a hearing comes with an additional price tag.

What if a manufacturer wants to change its approved packaging or label?

AB 175 states that resubmission for approval is required if a manufacturer wants to make a “material change.” However, it is unclear what would constitute “material.” We can encourage the Bureau issue guidance as to what types of modifications would be acceptable without resubmission.

 

This preapproval scheme for cannabis products is not new. The Oregon Liquor Control Commission (the “Commission”) currently evaluates both medical and recreational packaging and labels for cannabis products to ensure compliance. And, not only does Oregon regulate packaging and labeling, it also reserves the right to regulate strain names that it deems attractive to children. Oregon’s Commission, and has issued a Bulletin identifying examples of unacceptable strain names such as Candyland, Charlotte’s Web, Cinderella, and Bubbleicious. The Commission will not approve labels that include particular words it deems attractive to children. This could potentially have effects on the names cannabis companies choose for their businesses, particularly as companies plan to enter state marketplaces other than California.

AB 175 raises concerns such as, at least, subjectivity of what is “attractive” to children, what is considered a “material” change, and administrative capacity to review and approve thousands of proposed labels. The first hearing on AB 175 is scheduled for February 17, 2017. Stay tuned!

 

Nicole A. Syzdek is an Associate at Evoke Law, PC who focuses her practice on intellectual property, technology, and cannabis matters, including trademark and copyright prosecution and enforcement, Trademark Trial and Appeal Board proceedings, licensing agreements, and Internet policies.

Nicole received her Bachelors of Business Administration from Loyola Marymount University in 2012, and Juris Doctor, cum laude, from the University of San Francisco School of Law in 2015. Nicole’s professional affiliations include the California Bar Association, International Trademark Association, Bar Association of San Francisco, American Bar Association, and the National Cannabis Bar Association.

 

  • © The Regents of the University of California, 2015

  • Terms of use