by Anne Marie Ellis, Esq. Buchalter

There appears to be no finish in sight to ongoing client rules in California. Early this yr, California’s Office of Environmental Health and Hazard Assessment (“OEHHA”) considerably modified the Prop. 65 warnings regarding marijuana smoke and THC. The regulators’ actions can be adopted carefully by the bounty hunters- that are purported environmental teams that aggressively go after companies to implement Prop. 65 whereas lining their pockets (and their attorneys’ pockets) with charges and penalties. Because of the legalization of marijuana and rise in reputation of CBD merchandise, this is going to be a sizzling space of enforcement subsequent yr. The motive I believe there can be heightened enforcement of marijuana smoke and THC is for the next causes:  (1) there is an elevated societal push to know what individuals are consuming/utilizing on their our bodies, (2) given the doubtless controversial nature of marijuana and CBD, regulators are going to wish to take a stand with this business and ensure it is correctly regulated- particularly in client pleasant California, and (3) there is no present “safe harbor limit” established by OEHHA for THC.

There are 4 (4) chemical substances which can be ceaselessly focused on this business: carbaryl, myclobutanil, marijuana smoke and delta-9-tetrahydrocannabinol (“THC”).THC was positioned on the Prop. 65 checklist for the primary time on January 3, 2020 and recognized as a reproductive toxin. Therefore, hashish corporations can have a one-year compliance interval till January 3, 2021 to take care of Prop. 65 warnings that implicate THC. While marijuana smoke has been on the checklist since 2009, it was additionally recognized as a reproductive toxicant in January 2020, that means that by January 2021, corporations can even need to establish marijuana smoke as inflicting most cancers and a reproductive toxicant. A pattern of the short-form warning required for marijuana smoke (most cancers and reproductive hurt) and THC (reproductive hurt) that may turn into efficient in January 2021 appear like this:

California’s Prop. 65 requires corporations to offer a warning on their merchandise for most cancers, start defects or different reproductive hurt in the event that they include a number of of the 1,000+ substances on the Prop. 65 checklist, in an quantity that is over the protected harbor restrict established by regulators. The motive that Prop. 65 compliance is so difficult is that it requires an evaluation of an affordable particular person’s publicity to a chemical, not simply the content material of the chemical within the product. For instance, Prop. 65 doesn’t set content material limits for a chemical (eg. 500 elements per million), it units an publicity restrict to a given chemical (i.e. 5 micrograms per day). When analyzing a product {that a} client doesn’t ingest or contact ceaselessly – like a nut or a bolt that goes right into a motorcar engine or a vinyl ornament on a purse- the evaluation is somewhat simpler. However, when coping with merchandise that folks devour, ingest, inhale or contact by physique surfaces ceaselessly, the evaluation is extra nuanced. This is very true for hashish corporations that promote something from vegetation, edibles, vapes, cartridges and paraphernalia. Once you add THC to the combination, a variety of merchandise can be implicated since THC has by no means been regulated beneath Prop. 65 till now.

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Remember that there is an exemption in Prop. 65 if your organization employs 9 or much less individuals. But if your organization meets this threshold, the warning necessities apply to any enterprise within the chain of distribution, even when your organization is out of state. If you’re supplying product to the state of California and you identify that your product requires a warning, you could comply.

A protected harbor is a degree that has been established for many chemical substances listed beneath Prop. 65. Exposures which can be under the protected harbor degree don’t have to adjust to Prop. 65. When analyzing most cancers inflicting chemical substances, the “NSRL”- no vital threat degree is used, and when analyzing chemical substances inflicting reproductive hurt, the “MADL” – most allowable dose degree is used. THC is required to be listed as a reproductive toxicant, however once more, there is no established protected harbor. What this implies as a sensible matter, is that corporations will both have to do publicity testing for their merchandise in an effort to decide if a label is required earlier than sale, or in the event that they select to not check and label, they face the close to certainty of receiving a 60 day discover of violation. The bounty hunters are likely to concentrate on merchandise which can be unlabeled, cheap and straightforward to buy on-line by retailers, or in brick and mortar shops. Companies may align themselves with one another and create business requirements to assist struggle the notices of violation.


There are two chemical substances which can be ceaselessly focused on this area: carbaryl and marijuana smoke. However, corporations ought to be cognizant of the presence of heavy metals that are on the Prop. 65 checklist together with arsenic, cadmium, lead and mercury. There have been a number of notices filed just lately involving marijuana smoke. The varied sources of publicity embody a rig/bong, ice dice bubbler, water pipe, and blunt. Basically, noticing events are alleging that these paraphernalia merchandise, that are supposed for use with marijuana, should carry a Prop. 65 warning notifying shoppers in regards to the risks of marijuana smoke as each a developmental toxin and a carcinogen. The solely current discover for Carbaryl on this business includes Hemp Oil.

However, keep in mind that corporations have a one yr interval to checklist marijuana smoke as a developmental toxin (till January 3, 2021). However, corporations ought to take motion now to insure they’re altering their packaging and warnings as applicable.


With respect to THC, this can be extra difficult and jarring for corporations because it is a brand new itemizing. It can even implicate a broader vary of merchandise as a result of it impacts any product with a detectable degree of THC, together with these with lower than .3% THC (beneath federal regulation this is the definition of marijuana). Essentially, the federal regulation is irrelevant to the Prop. 65 evaluation. This might contain merchandise which can be made with or infused with CBD and include some degree of THC, together with edibles and vape cartridges. We have all seen over-the-counter merchandise touting the advantages of CBD, however this might simply change come 2021. I count on that many of those merchandise will rapidly be labeled for sale with a Prop. 65 warning to keep away from being the “watershed” check case for THC. For shoppers, it is but to be seen whether or not including a further warning to an already mysterious product, will flip them away or haven’t any vital impact on their shopping for energy of those merchandise.

Businesses mustn’t wait till the final minute to make packaging modifications or to replace their labels. They should assume and act proactively to keep away from pricey litigation. This means reviewing your product line for probably the most weak merchandise and chemical substances and prioritizing whether or not they require a label. Businesses should additionally analyze their contracts with their suppliers and distributors to make it possible for compliance amongst the distribution chain is being enforced. Finally, companies should insure that every one shops which can be promoting the product are distributing the correct warnings.


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