Good or bad, the Safe Drinking Water and Toxic Enforcement Act of 1986 (a / k / a Prop. 65) has plagued California businesses for a long time. And cannabis companies are no exception (see here and here). According to Prop. 65, companies must “give a clear and reasonable warning before causing exposure to
a chemical known to cause cancer or reproductive toxicity. “The Environmental Impact Assessment Agency (OEHHA), the authority responsible for implementing and monitoring Prop. 65, publishes and updates the list of chemicals known to cause cancer, birth defects or other types of reproductive harm. That list now contains hundreds of chemicals.
Effective June 19, 2009, marijuana smoke was added to the Prop. 65 list of chemicals known to cause cancer. The OEHHA Committee for the Identification of Carcinogens “determined that marijuana smoke clearly causes cancer through scientifically valid tests according to generally accepted principles.” Technically, every cannabis flower is subject to the warnings according to Prop. 65, since every flower contains “marijuana smoke” / produced and there is no safe haven per OEHHA. In addition, oils, wax, fumes, etc. usually contain at least one chemical on the OEHHA list.
Given these facts, there is hardly a cannabis business in California that is no longer subject to Prop. 65 warning requirements. And none of the government agencies responsible for overseeing the implementation of the Law on the Regulation and Safety of Cannabis for Medical and Adult Use (MAUCRSA) is directly helping licensees figure out what to do in order to be registered under Prop 65 (except for the practical fact sheet recently published by the California Department of Health, which barely recognizes Prop. 65 compliance).
In January 2020, OEHHA added “THC” to the list of chemicals known to cause reproductive harm. At the same time, OEHHA noted that “marijuana smoke” is not only classified as a carcinogen, it also causes reproductive harm (which will definitely change the content of the Safe Harbor language for flower products across the industry). There was a one-year grace period for cannabis companies to comply with the Prop. 65 Safe Harbor Warning Sign, and that grace period ended in January of this year.
Now the OEHHA is proposing to change the provisions of Prop. 65 again, but this time “tailored Safe Harbor warnings for cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) exposures should be targeted at affected companies and consumers support these products. “Specifically, the” proposed amendments will introduce new Safe Harbor warning provisions to regulate the method of transmission and content of warnings for exposure to cannabis smoke (marijuana) and delta-9-tetrahydrocannabinol (delta-9-THC). “Here is a copy of the proposed rules, and here are some of the highlights:
- The suggested Safe Harbor warnings are optional, but it would be stupid not to adopt them as they are your best chance of meeting Prop. 65.
- The Safe Harbor warnings (and delivery methods) apply to smokable and ingestible cannabis products (i.e., foods), as well as to THC-based or containing vapes, blobs (an undefined term, and dermally transferred products (such as skin patches)); and
- There will be a Safe Harbor Warning for “environmental exposures” to cannabis and / or THC for facilities “where such exposures may occur on business premises” (ie, consumer lounges under MAUCRSA).
The Safe Harbor warnings themselves are definitely different from the current warnings used by cannabis companies (see here). Here are some of the suggested warnings with the updated, “bespoke” Safe Harbor language:
- The Prop. 65 symbol; The word “WARNING: “In capital letters, bold type and the words“ Smoking cannabis increases your risk of cancer and exposes your child to delta-9-THC and other chemicals during pregnancy that can affect your child’s birth weight, behavior and learning. More information is available at www.P65Warnings.ca.gov/cannabis. “
- The Prop. 65 symbol; The word “WARNING: ”In capital letters, boldface and the words: (i)“ If you consume this product while pregnant, your child will be exposed to delta-9-THC, which may affect your child’s behavior and ability to learn. More information can be found at www.P65Warnings.ca.gov/cannabis ”, or (ii) If the product also exposes consumers to one or more of the listed carcinogens: “If you consume this product, you are exposed to carcinogens, including [name one or more listed carcinogens]and exposes your child to delta-9-THC during pregnancy, which is possible
affect your child’s behavior and ability to learn. More information is available at www.P65Warnings.ca.gov/cannabis. “
The public has until May 18, 2021 to receive comments from OEHHA on the proposed bespoke safe havens for cannabis and THC products. However, I expect the OEHHA will put the regulations into writing, which means hundreds of cannabis companies will need to revise their current product labels to comply with the new Safe Harbor language and stay as safe and compliant as possible. Otherwise, as usual, the infamous bounty hunters of Prop. 65 will be in abundance.
Cannabis companies should start examining their inventory now and taking stock of the time and cost it will take to protect themselves as these new safe haven warnings are undoubtedly being introduced.