Cannabis businesses may be surprised to learn that Proposition 65, the California law that seeks to warn consumers of chemicals in the products they buy, may apply to many marijuana products. This law requires all parties in the supply chain, from manufacturers to distributors (but not retailers except in certain circumstances) to place warning labels on products sold in California if those products contain certain levels of one of hundreds of listed chemicals determined to cause cancer or reproductive toxicity. Thousands of 60-day Prop 65 notices have been sent to cannabis companies, primarily growers and processors, already. With a theoretical price tag of $2,500 per violation in penalties and five and six-figure settlements, Prop 65 can be a huge headache for cannabis businesses who are not up to speed on the very real implications of this law.
Marijuana smoke has been listed as a Prop 65 chemical known to cause cancer since 2009, and so a Prop 65 warning is likely necessary for all raw cannabis. Edible items, as well as raw cannabis, may contain Prop-65 listed pesticides, fungicides, and insecticides such as myclobutanil, carbaryl, and malathion. In May 2017, a single plaintiff sent approximately 700 60-day notices to dispensaries, alleging Prop 65 violations due to the presence of Prop-65 listed fungicides and insecticides in edible products. The warning obligations for cannabis extract products depend on what chemicals are present, but various reports suggest that vaporizer devices may produce the Prop 65-listed chemicals of formaldehyde, lead, cadmium, and toluene, which are known to cause cancer and/or reproductive toxicity.
There are steps you can take to ensure compliance with this tricky law and avoid costly liability. Safe harbor levels for certain Prop 65 chemicals may be available. A Prop 65 “audit” involving laboratory testing of your products is one way to prevent liability. Or you can label offending products with warning labels that comply with the law – such as “This product can expose you to chemicals including [chemical name], which is known to the State of California to cause birth defects or other reproductive harm. For more information go to www.p65warnings.ca.gov.” There are alternatives for the wording of the warning, and there are options for how the warning may be communicated. Contact us if you need assistance navigating these issues, or if you need legal counsel to address a Prop 65 60-day notice you’ve received.