Edibles have been a huge part of the marijuana industry since well before recreational legalization. And it seems no two states have identical regulations for edibles that define the product’s THC limits, portion delineation requirements or the allowed shapes/colors of edibles. As federal legalization edges closer, it’s important to track and understand not just the state-to-state differences in edible regulations, but also the similarities.
Edibles are often a point of contention with lawmakers and concerned citizens, as there are common fears of over-consumption, child poisoning and accidental ingestion, and the effects of edibles on individual people seem to vary widely compared to inhalation THC products.
Many states have taken a simple approach to regulating edibles, by mandating strict limits on the milligrams of THC allowed in edibles. Most states consistently mandate a maximum serving size of 5-10 milligrams of THC and a per-package limit of 50-100 milligrams THC. Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington all have recreational regulations that fall within these limits. The package limits are much higher in Illinois and Montana, at 500 milligrams and 800 milligrams, respectively.
Many producers would like to see increased THC limits per serving, especially in states that have 5 milligram-per-serving THC limits. Those who wish to expand or change regulations often face an uphill battle, as public health advocates and other third parties form a more active opposition than in other marijuana regulation proposals. This can be seen in Alaska’s recent proposal to change the milligram limit from 5 milligrams per serving to 10 milligrams per serving with a package limit of 100 milligrams. There has been a ton of heated public comment debating this issue, as it would be a 100% increase from the current 5-milligram limit. Edibles are testing in Alaska with a 20% margin of error allowance, creating an effective limit of 120 milligrams per package.
Public health organizations and concerned citizens voiced their concerns about public intoxication, potential risks to minors and risks of accidental over-consumption. Advocates for the change noted the high cost of edibles, the environmental costs of packaging, the lack of a local medical marijuana program, how high-tolerance users cannot effectively use edibles under the current legal limit, the affordability of the black market, the need to compete with other states’ markets and attract tourists, difficulty in selling “low-dose” edibles, lack of variety in dosage in the market, etc.
In all, 71 public comments were submitted (85% in favor of raising the limits), showing vastly more public interest than almost any other regulation project.
This regulation may be voted on by the Alaska Marijuana Control Board in June. Even if it passes, it will still need to be signed into effect by Lieutenant Governor Kevin Meyer. And even if the edibles regulation passes all these hurdles, it will still be many months until retailers will be able to sell their new products, as all changes to serving sizes must be approved by the Marijuana Control Board at a regular board meeting.
It’s also important to keep federal legalization in mind when thinking about changing a particular state’s regulatory provisions. Changes to local programs need to be carefully crafted so as not to undermine an operator’s ability to pivot to federal requirements if/when those are implemented.
The other issue stagnating the debate is the lack of concrete data. Some regions have seen an increase in poison control calls from minors after legalization, but there is no available data on whether that marijuana was obtained from the legal market. There also is limited-to-no available data on the long-term effects of marijuana overdose on minors, and whether those issues are more severe or long-term in states with higher edibles limits. Particularly, there is no available data on whether there is a rise in poison control calls or emergency room visits after an increase in edible limits, as most states’ programs are very young and still have their original milligram limits.
Beyond the simple milligram limit, states have regulated various aspects of edibles in interesting ways. The fear of appealing to children has shaped much of these regulations. The marijuana packaging market, much of it child-resistant, is estimated to be worth $1.5 billion by 2024. While many states choose to leave the “appealing to children” determination up to the governing board’s discretion, the state of Washington has taken a particularly strict approach to regulating marijuana-infused edibles. Edibles can only be produced and packaged in muted colors. Washington licensees are specifically allowed only 10 pre-approved shapes for edible products, including squares, rectangles, circles and some more exotic options like pentagons. Edible packaging is limited to 16 approved colors, with an allowance of up to three accent colors. Those who wish to expand beyond those options must petition the Washington State Liquor and Cannabis Board.
Washington, as well as Arizona, Massachusetts and some other states, prohibits any edible in the shape of fruits, animals, cartoon characters, people, etc., in an attempt to avoid enticing children. Health and safety goes beyond just enticing children, and most states require extensive testing to protect against edibles contaminated with aspergillus, pesticides and food-borne disease.
In short, if you are a licensee/operator who wants to expand its edible production outside of the state you are currently licensed in, you need to engage a competent lawyer who is well versed with not only the language of the regulations, but how the regulations are being actively interpreted by that state’s control agency. Words matter in regulation, but how the regulations play out in real life and are interpreted is a whole other matter. You need to know both to be compliant in any recreational state.