Prop 65 Compliance Risks for the Cannabis Sector

A new year (January 3, 2021) will trigger Prop 65 warning requirements for cannabis/CBD products!

Cannabis (marijuana) smoke was added to the Proposition 65 list in 2009 as a chemical known to the State of California to cause cancer, while on January 3, 2020, cannabis (marijuana) smoke and Δ9-tetrahydrocannabinol (Δ9-THC) were both added to the Proposition 65 list as chemicals known to cause reproductive toxicity. The 1-year grace period ends on January 3, 2021, which means companies should be prepared to label products or face potential enforcement activity. As no Safe Harbor Limits (SHL) have been published by OEHHA for either of these endpoints, it essentially means that any exposure to these chemicals would trigger a Proposition 65 warning (unless a company derives SHL themselves). This would apply to products that are used that may result in oral, inhalation, or topical exposure, including products that contain less than 0.3% THC in conformance with federal law.

    What other Proposition 65 chemicals might be relevant to cannabis products?

Due to the ubiquitous presence of heavy metals in soils around the world, certain amounts of these substances may be taken up by the cannabis plants or may be inadvertently introduced during the growing, harvesting, or processing steps of these products. Heavy metal testing should be a default and ongoing quality check of all products.

Chemicals used to control pests in cannabis growing operations may also be used that could result in residues being present in the final product. Careful analysis of residues in the final products would be necessary to ensure compliance.

Any business in the chain of distribution, including manufacturers, distributors, and retailers, including out-of-state companies selling products into California are required to comply with Proposition 65 and could be held liable. We have previously discussed the cost of being targeted for non-compliance with this regulation by roving enforcement parties looking to make exorbitant fees. Each and every month hundreds of companies are targeted – 158 NOV have been issued to companies selling products that expose consumers to “marijuana smoke”. Given that even minimally detectable levels of THC could trigger non-compliance, enforcement is likely to spike in the new year.

Taking a proactive approach in ensuring your products are compliant with Prop 65 can save you tens of thousands of dollars in potential settlement fees. If you have any questions, reach out to learn how we can help protect your business!