California edibles rules: What’s in those brownies?

Part I: Manufacturers must follow strict regulations

With adult use of cannabis now legal in California, some food companies may be considering adding cannabis-infused edibles to their product lines. According to Forbes, edibles may account for more than half of the growth in the booming cannabis industry, as high-end food products infused with cannabis and cannabinoids are growing in demand for the discerning consumer who cares not only about the high, but also taste and quality.

But with legalization comes regulation, and the California Department of Public Health has issued emergency regulations detailing what is and isn’t allowed in manufacturing and selling edibles, including stringent requirements for THC content per serving and per package.

Here are some key things to know about manufacturing and selling edibles under the new California regulations.

 

Prohibited Products

There are certain things that you just can’t make into and sell as edibles. First, alcohol and THC do not mix. While you may hear about cannabis beer, these products are either alcoholic but do not contain THC (some contain CBD only or they are brewed with hemp and terpenes), or they contain THC but are non-alcoholic.

Cannabis can’t be added to cheese or ice cream either, as dairy products are out. Meat (other than dried meat) and seafood also can’t be infused with cannabis. Products that have to be refrigerated to make them fit for human consumption are also out, as is juice that is not shelf-stable.

Products with additives such as nicotine or caffeine that would increase potency, toxicity or addictive potential, or that would create an unsafe combination with psychoactive substances, are prohibited, although a product that has naturally-occurring caffeine, like tea, coffee or chocolate, is fine.

Finally, you can’t add cannabis to commercially available candies or snack foods with no further processing, and products that are easily confused with commercially available food products that do not normally contain cannabis are prohibited.

 

Appealing to Children

A big concern addressed by the regulations is preventing children from accidentally ingesting cannabis edibles. To that end, manufacturers of cannabis edibles can’t make products that might be attractive to children.

Edibles that are shaped like a human, animal, insect or fruit are specifically prohibited — the rationale being that these shapes are appealing to children. If you are going to make cannabis gummies, for example, don’t make them look like gummy bears and don’t call them “candy,” which is a term that cannot be used. The label and packaging can’t have content that imitates candy packaging or labeling, or include anything that might appeal to children, such as cartoons or other images, characters or phrases popularly used to advertise to children. Finally, the packaging itself has to be child resistant and can’t look like packaging used for products typically marketed toward children.

 

THC Content and Servings

The regulations limit the amount of THC that edibles can contain. Edibles may not have more than 10 milligrams of THC per serving and 100 milligrams of THC per package. This limits manufacturers from making more potent products. This is in line with the dosage limits set in other states, including Washington, Colorado and Nevada.

Edibles have to be packaged so that a consumer can accurately identify a single serving.  Products that contain more than one serving have to be scored or delineated to indicate a single serving, if it is in solid form. A chocolate bar, for example, might be scored into 10 pieces that each contain 10 milligrams of THC. If the product is not in solid form, it has to be packaged in such a way that a single serving is readily identifiable. For example, a cannabis-infused drink could include a dosage cup similar to what comes with cough syrup. The THC content in all servings has to be consistent and each serving in a multi-serving package has to contain about the same amount of THC.

All product ingredients, other than the cannabis, cannabis concentrate or terpenes, must be permitted by the U.S. Food and Drug Administration for use in food or food manufacturing.

 

Other Considerations

It’s important to note that cannabis is considered a controlled substance under the federal  Controlled Substances Act, and despite legalization in California, trafficking in cannabis — including the manufacture and sale of  edibles — remains illegal under federal law. Possible negative consequences, including federal criminal prosecution and tax liability, still exist. Along with the requirements outlined here, there are other requirements under California law with regard to obtaining a manufacturing license, testing, advertising, distribution and sales of edible cannabis products.

It’s a brave new world of legalized cannabis in California, and the market for edibles will continue to grow, but before jumping in, it is important to first seek legal advice and to proceed with caution.

 

Karen Balderama is a partner with Wendel Rosen Black & Dean LLP in Oakland, California. She can be reached at kbalderama@wendel.com. This article is the first of a two-part series on edibles regulations in California. Packaging and labeling requirements will be covered in Part II, scheduled for the September issue of Marijuana Venture.

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