California Prop. 65 Warning Requirement for THC Makes CBD, Hemp and Cannabis Products a Target

Bryan Cave Leighton Paisner
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Although under federal law CBD products are allowed to contain up to 0.3 percent THC, or Δ9-Tetrahydrocannabinol, no safe harbor level of exposure to THC has been established under Prop. 65.  That means private enforcers can argue that any detectable amount can subject a product to the Prop. 65 warning requirement.  Companies can work with consultants to develop a safe use determination for THC, but until it is established and accepted, enforcement actions will be a material risk.  Notably, the Prop. 65 listing applies to Δ9-THC, although the Prop. 65 requirements may still be triggered by residual Δ9-THC present in other THC products, like Δ8-THC distillates.

At the same time that THC was added to the Prop. 65 list, California’s Office of Environmental Health Hazard Assessment added a reproductive harm endpoint for cannabis (marijuana) smoke, which was already identified as a carcinogen under Prop. 65.  That means that although cannabis products intended to be smoked may already bear a Prop. 65 warning related to cancer, the reproductive harm warning should also be included.

As for THC, the listing raises Prop. 65 considerations for a much broader range of cannabis, hemp and CBD products, such as oils, edibles, beverages, and vape cartridges.  Plaintiff groups are expected to aggressively target these products, expanding on a multi-year trend of pursuing marijuana-based businesses for Prop. 65 violations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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