California is just starting to get its cannabis packaging and labeling regulations right under MAUCRSA. California has a mandated transition period from January 1 to July 1, 2018, during which time adult use and medical marijuana licensees can do business with each other and temporary and annual state licensees can transport and sell cannabis products already in their possession in the newly regulated market. This means there are two packaging and labeling standards during this transition period: one for products that licensees bring into the marketplace from before January 1, 2018 and another for products cultivated or made on or after January 1, 2018.
For transition period products only, the following packaging and labeling rules apply:
Retailers and Distributors:
If at the time it is licensed by the state (i.e., receiving the temporary or annual license), a retailer already has cannabis goods not in child-resistant packaging, those products can still be sold by the retailer if the retailer places them “into child-resistant packaging . . . at the time of sale.” Cannabis goods that do not meet the full-blown packaging and labeling requirements for new products can still be transported and sold if “a sticker with the applicable warning statement under Business and Professions Code section 26120, subdivisions (c)(1)(A) and (c)(1)(B) is affixed to the cannabis goods prior to sale by the retailer.” Retailers can still sell, and distributors can still transport, cannabis goods that have not undergone laboratory testing “if a label stating that the cannabis goods have not been tested as required under Business and Professions Code section 26070(l) is affixed to each package containing the cannabis goods prior to sale by the retailer.” In addition, dried flower held in inventory by a retailer at the time of licensure that is not packaged may (not must) be packaged by the retailer into individual packages for sale. Cannabis products held in inventory by a retailer that don’t meet the appearance or ingredient requirements pursuant to Business and Professions Code section 26130 and 26131 can still be sold by a retailer.
In the transition period, manufacturers can sell cannabis products already in their possession at the time of licensure so long as those products are: 1) packaged in child-resistant packaging; 2) labeled with the government warning set forth at Section 40408(a)(3) of the manufacturing rules; 3) within the THC limits under Sections 40305 or 40306 of the manufacturing rules; and 4) labeled with the amount of THC and, if applicable, CBD per serving and per package.
Under the manufacturing rules, “child-resistant packaging” means:
“the package shall be designed or constructed to be significantly difficult for children under five years of age to open or otherwise obtain access to the product contained therein within a reasonable time, and shall not be difficult for normal adults to open or obtain access to the product contained therein.’ A package shall be deemed child-resistant if it satisfies the standard for “special packaging” as set forth in the Poison Prevention Packaging Act of 1970 Regulations (16 C.F.R. §1700.1(b)(4)”).
A secondary package that is child-resistant is okay with the state for this requirement.
Other than having to label cannabis with the disclaimer that “This product has not been tested as required by the Medicinal and Adult-Use Cannabis Regulation and Safety Act” and having to include the government warning from Business and Professions Code section 26120, subdivisions (c)(1)(A), there are no other specific packaging or labeling requirements in the MAUCRSA emergency rules for transition period product in the possession of cultivators at the time of licensure (i.e., raw flower and unmanufactured cannabis products).
Once licensees run out of transition period product or start making or cultivating new products, the more robust packaging and labeling requirements apply to manufacturers, cultivators, and distributors. (Retailers will be allowed to package and label any of the new products). However, it’s never to early to start running your mock-up labels and packaging to ensure that you comply with these very important regulations. Indeed, a proper label can make or break you in a products liability lawsuit and if you haven’t heard of Prop. 65 in the cannabis context, you’re behind (yes, transition period product should have the requisite Prop. 65 warnings).
In Part 2 of this series on California cannabis packaging and labeling, I’ll cover the packaging and labeling regulations for products cultivated or made on or after January 1, 2018.