UPDATE ON AB 175: Assembly Committee on Business & Professions Approves California Cannabis Edibles Packaging Bill

On April 18, 2017, the California Assembly Committee on Business & Professions (the “Committee”) approved Assembly Bill 175, which would establish a pre-approval regime for packaging and labels for edible cannabis products. The bill has already garnered support from multiple associations, many of which are focused on youth and/or consumer protection. Organizations such as the Union of American Physicians and Dentists, California Children’s Hospital Association, and the California State PTA cite to the bill’s overarching intent of child safety in support of its implementation.

In contrast, the California Cannabis Industry Association (CCIA) is the lone opponent. While the CCIA certainly supports the need for safe packaging and marketing of edible cannabis products to children, it provides the following reasons for its opposition to AB 175:

  1. The bill is premature because the California Department of Public Health is expected to release its draft regulations for the industry later this month, and it is unnecessary to impose additional requirements without first considering the Department’s regulations.
  2. The bill will slow down the already delayed new regulatory system for cannabis; creating a system to approve all packaging is simply not practical at this time.
  3. Requiring a state regulator to decide what packaging is and is not “attractive to children” opens up the state to potential liability.

The CCIA’s arguments have not fallen on deaf ears, as the Committee expressed similar concerns in the “Policy Issues for Consideration” section in the Bill Analysis. The Committee notes that while preventing unintended consumption of cannabis products by minors is of paramount importance, it has reservations that AB 175 will be effective at doing so given the packaging and labeling regulations already in place under AUMA.

The Committee also expressed administrative concerns for implementation given (1) the lack of institutional knowledge about the manufacture of cannabis edibles at the Bureau of Marijuana Control (within the Department of Consumer Affairs), (2) uncertainty about staffing requirements, and (3) the ability to recover the increased overhead costs through fee collection.

Appropriately, the Committee acknowledges industry concerns that the potential 6-month delay for packaging approval ties up business inventory, which risks legal action from edibles manufacturers, the diversion of products to the black market, or the circumvention of the review process altogether.

Although child-resistant packaging is important to keeping cannabis out of minors’ hands, home safety and secure storage of edibles and other cannabis products is equally as significant. The Bill Analysis references a September 2016 study by the American Medical Association comparing the incidence of pediatric exposure to cannabis in Colorado before and after the legalization of recreational cannabis. The study found that Colorado had a 34% per year increase of cannabis exposure, compared to the national average of 19% per year. When the source of the exposure was known, 48% included cannabis edibles, but notably, 34% of all scenarios were attributed to poor child supervision or product storage.

There is no doubt that cannabis edibles manufacturers must do their part in eliminating juvenile cannabis exposure; but even the most unattractive packaging cannot prevent human carelessness. There should also be requirements that cannabis users take simple precautions in storing opened and unopened cannabis products out of reach from children, once the products are in the home.

There is still much to consider regarding the effectiveness and practicality of AB 175 and testimony was heard by the Assembly Committee on Health on April 25, 2017. Stay tuned for further updates.

 

Nicole A. Syzdek is an Associate at Evoke Law, PC who focuses her practice on intellectual property, technology, and cannabis matters, including trademark and copyright prosecution and enforcement, Trademark Trial and Appeal Board proceedings, licensing agreements, and Internet policies.

Nicole received her Bachelors of Business Administration from Loyola Marymount University in 2012, and Juris Doctor, cum laude, from the University of San Francisco School of Law in 2015. Nicole’s professional affiliations include the California Bar Association, International Trademark Association, Bar Association of San Francisco, American Bar Association, and the National Cannabis Bar Association.

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