Despite the fact that Covid-19 has dominated the headlines for the past few months, enforcement of Proposition 65 hasn’t slowed down. If past performance is a good indicator of future performance, it is nearly certain that we will continue to see an uptick in Prop 65 notices, particularly those geared toward the cannabis industry.
Proposition 65 requires businesses to warn Californians about cancer-causing chemicals present in products they purchase. Not only are people very focused on what goes into their bodies, but the legalization of marijuana and interest in cannabis has fueled this booming industry. However, noticing parties seem adamant to insure that the companies fueling this demand comply with their regulatory obligations under California and federal law.
Four chemicals are frequently targeted in this industry: carbaryl, myclobutanil, marijuana smoke, and THC, the psychoactive compound that gives marijuana users a high. THC was placed on the Prop 65 list for the first time on Jan. 3 and identified as a reproductive toxin. Cannabis companies will have a one-year compliance period to deal with Prop 65 warnings that implicate THC. While marijuana smoke has been on the list since 2009, it was also identified as a reproductive toxicant in January, meaning that by January 2021, companies will also have to identify marijuana smoke as causing cancer and a reproductive toxicant.
Violation Notices
You can’t talk about these upcoming changes without referencing what is happening on the ground floor. A review of the publicly available notices of violation for these four main chemicals reveals that carbaryl and myclobutanil are less frequently targeted in the notices of violation. For example:
- On April 23, the Chemical Toxin Working Group filed a notice against Kapu Maku LLC (dba Populum) alleging an exposure from hemp oil. Prior to that, the last notice involving cannabis related products and carbaryl was in August 2017. The remaining notices in between relate to balsamic vinegar;
- The last 60-day notice relating to exposure of myclobutanil was filed in August 2017 relating to a “TKO Peanut Butter Cookie” against Clean Cannabis Initiative LLC;
- Since late May, there have been multiple notices filed involving marijuana smoke. The various sources include a rig/bong, ice cube bubbler, water pipe, and blunt. Basically, noticing parties are alleging that these paraphernalia products, which are intended to be used with marijuana, must carry a Prop 65 warning notifying consumers about the dangers of marijuana smoke.
In addition to these chemicals, there are many heavy metals commonly found in cannabis related products that may require a warning. They include lead, arsenic, cadmium and mercury. These chemicals are generally a bit easier to provide guidance on, as there are established safe harbor levels, or other regulatory guidance that can be used in assessing whether a warning is required.
The reason I suspect there will be heightened enforcement of marijuana smoke and THC is that there is no current “safe harbor limit” established by OEHHA for these chemicals. A safe harbor is a level that has been established for many chemicals listed under Prop. 65. Exposures that are below the safe harbor level do not need to comply with Prop 65. When analyzing cancer causing chemicals, the “NSRL”—no significant risk level is used, and when analyzing chemicals causing reproductive harm, the “MADL”—maximum allowable dose level is used.
Dual Battle
Businesses are going to face a dual battle. First, they are going to have to change their labeling and packaging for marijuana smoke to also list marijuana smoke as a reproductive toxicant and cancer causing agent. Second, companies are going to have to grapple with labeling products that contain THC for the first time before enforcement begins in January 2021.
With respect to THC, this will be more complicated and jarring for companies since it is a new listing. It will also implicate a broader range of products because it affects any product with a detectable level of THC, including those with less than 0.3% THC (under federal law this is the definition of marijuana). Essentially, the federal law is irrelevant to the Prop 65 analysis. This could involve products that are made with or infused with CBD and contain some level of THC, including edibles and vape cartridges.
We have all seen over-the-counter products touting the benefits of CBD, but this could easily change come 2021. I expect that many of these products will quickly be labeled for sale with a Prop 65 warning to avoid being the “watershed” test case for THC. For consumers, it is yet to be seen whether adding an additional warning to an already mysterious product, will turn them away or have no significant effect on their buying power of these products.
The bottom line is that companies should not wait until the last minute to make packaging changes or to update their labels. They must think and act proactively to avoid costly litigation. Under the Prop 65 scheme, while the primary responsibility is intended to land with the manufacturer, any business in the chain of commerce is potentially exposed to receiving a notice and fighting their way out of the mess.
Businesses must know the composition of their products, insure accurate labeling and must review their contracts for allocation of responsibility among the most culpable parties.
