CBD Product Alert: Prop 65 Enforcement of New THC and Cannabis Smoke Listings to Commence January 3, 2021

Kelley Drye & Warren LLP

The one-year grace period to come into compliance with new Proposition 65 warning requirements for cannabis smoke and THC ends — and enforcement may begin — as of January 3 of the new year.

By that date, businesses that may expose consumers to the listed chemicals must determine if warnings are required for their products and, if so, post a proper warning (such as on a product label, website page, and/or shelf sign, among other options).  As discussed in my post when the new listings were issued, while marijuana smoke has been a Prop 65 carcinogen since 2009, on January 3, 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized the listing of “cannabis (marijuana) smoke” and delta-9-tetrahydrocannabinol (THC) as reproductive toxins.

Accordingly, though some marijuana-products already may have Prop 65 warnings related to smoke and cancer, the warnings for these products should be reevaluated and revised to address both cancer and reproductive toxicity.

As for THC, the listing injects Prop 65 considerations into a much broader range of cannabis-based products, such as edibles, beverages, and vape cartridges.  Notably, many cannabidiol (CBD) products — which, under federal legislation, may contain up to 0.3% THC — may require a new Prop 65 warning if they contain detectable levels of THC.  Given that OEHHA has not yet established a “safe harbor” level for THC, the burden falls on businesses to determine if exposure to THC from the product will pose a significant risk of reproductive harm.  That technical assessment requires, first, calculation of the daily exposure level from normal use of the product; and, second, a comparison of that exposure level to the “safe” level determined by conducting an independent evaluation of the scientific literature following the requirements of the Prop 65 regulations.

Plaintiff groups are expected to target cannabis/CBD products aggressively as soon as the January 3, 2021, compliance deadline passes, expanding on a multi-year trend of pursuing marijuana-based businesses for Prop 65 violations.

[View source.]

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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