Pondering packaging possibilities for pot products

July, 2014

Eric F. Greenberg | Attorney-at-Law

There are so many surprising, fascinating aspects of the rapidly disintegrating illegality of marijuana in America. It’s a wholesale change in what’s legally accepted behavior for adults, bringing a complex subculture out of the shadows and causing immediate tension between those who celebrate a victory for personal freedom and the forces who’d rather people didn’t use their freedom for self-intoxication. For regulatory and public policy geeks, such as I, what’s most fascinating about the whole trend is that the new legal status presents an unprecedented challenge for regulators.

And those new marijuana regulations, dear packaging professional, often deal with packaging and labeling.

Like many folks, my attention was drawn to this issue when a New York Times columnist named Maureen Dowd wrote a column a few weeks ago about how she went to Colorado, ate too much of a pot-infused chocolate bar, and had to stay in bed for 8 hours in what she described as a significantly unpleasant condition. Of all the interesting comments she offered about her experience, one jumped out at me: that a Colorado government task force was taking a closer look at how best to package and label marijuana-containing foods, in order to avoid adverse experiences like hers, or worse.

Turns out, Colorado has already got a variety of regulatory requirements in place for smokeable marijuana, edible foods containing marijuana, and marijuana oil, legal sales of which the state allowed beginning on January 1. (Medical marijuana products are still legal in Colorado, and had been for some years, and are still sold in separate channels.)

Colorado requires that retail marijuana products like that chocolate bar need to be individually packaged and labeled with specified information, including the name and graphic symbol of the retailer, a “universal symbol” adopted by the state that indicates the product contains marijuana, license numbers of the spot where it was grown and the place where it was made, batch number, a statement about whether the package is child-resistant, clear usage instructions, a list of ingredients, a statement about whether it needs to be refrigerated, an expiration date, and a series of warning statements. Among the required warnings are that “There may be health risks associated with the consumption of this product,” that it’s unlawful outside of Colorado, that it’s for those 21 and older and to keep it out of the reach of children, and that it could take two or more hours for the product’s effects to appear. And this: “The standardized serving size for this product includes no more than ten milligrams of active THC.”

Concerned about reports such as that of Ms. Dowd’s experience, and, more ominously, two fatal events reportedly associated with excessive pot ingestion, regulators in Colorado are taking a closer look at pot-containing food products. The state’s governor asked a task force to look at whether packaging and labeling could help make edible marijuana products safer.

At this point, they are listening to any and all suggestions and will develop some recommendations. They might come back with recommendations for stronger or more prominent warning statements. One idea being floated is what is something called ‘unit dose’ packaging, that is, requiring individually wrapped serving sizes each delivering 10 milligrams of THC.

Longtime readers know that I am fond of pointing out that packaging design, and labeling content, are both central contributors to making products safe. A product’s safety is a function of a combination of its chemistry and physical condition with its packaging and labeling. With these products, it’s a matter of charting new territory. Newly legal products such as these marijuana edibles present new legal challenges, as it’s not immediately clear what packaging and labeling are called for to assure the safety of products that haven’t been sold legally in the U.S. before.

One can’t miss the irony of the fact that as FDA is currently noodling over proposed changes to food label serving sizes so as to better match nutrition information on the label with realistic serving sizes, Colorado struggles with how to convey and properly warn the unwary about a “serving” of marijuana in a food product containing the drug.

It’s an interesting adventure for regulators and enthusiasts right now, but it won’t be too many years before smokeable and edible marijuana will take their place alongside other consumer products-used by some, shunned by others, but either way, inevitably, regulated. PW

Eric Greenberg can be reached at [email protected], and visit his firm’s Web site at www.ericfgreenbergpc.com.

This article is informational only and is not intended as, and should not be considered to be, legal advice.

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GRAS Goes to Congress

GRAS Goes to Congress

By Eric F. Greenberg, Attorney-at-law

Remember that whole business involving NGOs and other folks objecting to the legal system that allows companies to self-determine that their uses of substances are Generally Recognized As Safe (“GRAS”)? And remember how some groups had gone to court to get the system declared unlawful, but late last year the court ruled against them? Well, there’s a new chapter to this story. Now, some members of Congress have proposed a bill that would make changes to the law to address those very same objections.

The GRAS pathway to clearance of the use of substances in packaging and in food is crucially important, and this proposed law has the potential to make enormous changes in various legal obligations. For that reason, packagers should keep a close eye on this latest chapter in the ongoing debate over the policy issues surrounding the GRAS system.

In my view, addressing the complaints we’ve heard for years about the GRAS program required changes in the law, so at least the objectors are in the correct forum. There’s been so much criticism of the Food and Drug Administration lately, what with its slow reaction to the infant formula contamination problem, on top of its handling of issues relating to heavy metals in baby food and various complaints about its handling of COVID and other drug approvals, for some examples. But when it comes to the GRAS program, it’s always seemed that most of the objectors’ objections were better directed at Congress than at FDA.

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