Major Changes to Proposition 65 Warnings for Cannabis Proposed

• Sections 25607.38 and 25607.39 – Cannabis (Marijuana) Smoke from Consumer Products Exposure Warnings – Methods of Transmission and Content;
• Sections 25607.40 and 25607.41 – Delta-9–THC in Ingested Products Exposure Warnings – Methods of Transmission and Content;
• Sections 25607.42 and 25607.43 – Delta-9-THC from Vaping or Dabbing Products Exposure Warnings – Methods of Transmission and Content;
• Sections 25607.44 and 25607.45 – Delta-9-THC from Dermally Applied Products Exposure Warnings – Methods of Transmission and Content;
• Sections 25607.46 and 25607.47 – Cannabis (Marijuana) Smoke and Delta-9- THC Inhalation Exposure Warnings (Environmental Exposures) – Methods of Transmission and Content.

These sections, if adopted, would create new rules and warnings specifically for goods that can expose consumers to cannabis smoke or delta-9-THC, with different requirements depending on whether the product causing the exposure is intended to be smoked, ingested (i.e., as an edible), dabbed or vaped, or applied to the skin. Two of these sections would also create new warnings for areas where cannabis smoke or delta-9-THC may be present in the air (i.e., in a consumption lounge).

The proposed changes would eliminate the option of using the “short-form” warning that most cannabis companies are currently using in connection with their products. Fitting all of this information on certain packages might present a challenge. However, there are other ways to provide a warning if it does not fit on the product label itself, such as a sign or shelf-tag.

As the ISOR makes clear, the OEHHA is proposing to eliminate the option of using the “short-form” warning in §25602(a)(4) for cannabis smoke and delta-9-THC:

“The exception to the use of methods of transmission for consumer products is that the use short-form warning provided in Section 25602(a)(4) is excluded from use for cannabis smoke and delta-9-THC. This is so that consumers receive the full safe harbor warning language so they can be made aware of the specific effects the exposures can cause to unborn children. The short-form warning method in Section 25602(a)(4), does not provide for this level of specificity. The full warning language clearly conveys the adverse developmental effects delta- 9-THC and cannabis smoke can cause. Also, as noted above with respect to content (Section 25603), OEHHA removed the “known to the State of California to cause” language in part to reduce the length of the warning. If the product packaging is too small to accommodate the proposed warning, other warning methods, such as posted signs and shelf tags, are available.”

ISOR, page 10.

Public comments on the proposed new regulatory sections are due on May 18, 2021. Comments can be submitted online at https://oehha.ca.gov/comments, or mailed in to the address listed in the Notice of Proposed Rulemaking. A virtual public hearing will only be scheduled if requested, which can be done by emailing Monet Vela at monet.vela@oehha.ca.gov no later than May 3, 2021. For more information, visit the OEHHA website.

UPDATE 4/27/21: A virtual hearing has been scheduled for May 10, 2021 at 1:00pm, and the last day for the public to submit comments has been extended until May 24.

This is a developing story; stay tuned for more information.