You’ve dedicated your time and money to local permits and state licenses, you’ve started operations, and now you need to get your product to market. What could go wrong? Well – if your manufactured cannabis products are improperly labeled – a lot, actually.
Tier 1 Regulatory Violations
According to the California Department of Cannabis Control’s Disciplinary Guidelines for All Commercial Cannabis Licenses, failure to comply with the packaging and labeling requirements found within the California Business and Professions Code (see sections 16120 – 16122) and the California Code of Regulations (see section 15303, 15412, and 17398 – 17412) is considered a Tier 1 regulatory violation. Tier 1 violations are subject to a sliding scale of punishments based on a totality of the circumstances analysis performed by the Department of Cannabis Control.
In most cases, a minimum penalty of a five (5) to fifteen (15) day license suspension, a fine, or a combination of a suspension and a fine may be assessed. For more serious cases, the Department of Cannabis Control could move for complete license revocation.
Creating Compliant Cannabis Product Labels
To help ensure your product labels are compliant, you can download and use the packaging and labeling checklists that the Department of Cannabis Control created for licensees to use when creating product labels. While these checklists are helpful, they are merely a starting point for label compliance. Given the stakes, it is extremely important that you have someone with knowledge of the applicable labeling regulations review your product labels BEFORE they go to print.
Most Common Cannabis Product Labeling Mistakes
Rogoway Law Group attorneys review product labels for clients on a regular basis and have seen a wide variety of labeling mistakes. Below we discuss the five most common mistakes manufacturers make when creating product labels in hopes that you can avoid making them in the future.
1. Forgetting to Include “Cannabis-Infused” and/or the Generic Name of an Edible Product
Failing to include the words “cannabis-infused” or “cannabis infused” immediately above the generic name of an edible product is one of the most common labeling oversights we encounter. For example, if your product is an edible chocolate-chip cookie, the words “cannabis-infused” or “cannabis infused” must be listed immediately above the words “cookie”, “chocolate-chip cookie” or other generic product identifier. A basic example of how this could look is shown below:
THE CRAZY COOKIE MAKERS
2. Mentioning Geographic Locations (City or County)
Including the name of the County or City in which the product was manufactured on the label when the cannabis contained within the product was not grown in that County or City is another common manufactured cannabis product labeling error. If ALL of the cannabis in your product was not grown in the County or City listed on your label, you must not include the County or City’s name on the label.
3. Not Including a Required Prop. 65 Warning
Packaging and Labels for cannabis products sometimes fail to include a required Prop. 65 warning on the product label. There are HUNDREDS of chemicals on the Prop. 65 chemical list, so you need to take a look at all of your product’s ingredients and cross check them with those on the Prop. 65 list to see if a Prop. 65 warning must be included on your product label.
In general, all smokable cannabis products require a Prop. 65 warning. Similarly, all cannabis products that contain THC require a Prop. 65 warning. Failing to include a necessary Prop. 65 warning can not only lead to a Department of Cannabis Control enforcement action but also costly civil lawsuits, so it’s best to get your Prop. 65 warning right the first time.
4. Incomplete or Missing Label Information on the Outermost Packaging
Cannabis product manufacturers sometimes fail to include all required label information on the outermost packaging of a product. All required label information including, but not limited to, all applicable warnings, the universal symbol, the weight of the product, the ingredients list (when applicable), etc. must be on the outermost layer of packaging that the consumer sees. However, the regulations contain some labeling requirements for interior packaging as well, so be sure to consult the regulations if you have multiple layers of packaging.
5. Including the word “Organic” on the Label
Including the word “organic” on the label when neither the cannabis nor the product has been authorized by the National Organic Program as organic is another common mistake. This one is pretty straight forward. If you can’t prove it, don’t include it. Proving organic certification is generally impossible at this point because cannabis is still a Schedule 1 narcotic under Federal law.
Note: In 2021, The California Office of Administrative Law (OAL) approved the OCal regulations, 2021-0714-01, to establish a program for cannabis businesses that is comparable to the National Organic Program and the California Organic Food and Farming Act. If you believe your product qualifies for OCal certification, click here to access the OCal regulations and information about the OCal certification process.
If you’d like help ensuring your products labels are compliant with California law, please contact the cannabis industry regulatory compliance attorneys at Rogoway Law group today.