Effective Jan. 3, 2020, Proposition 65 lists delta-9-tetrahydrocannabinol (“THC”) and cannabis (marijuana) smoke (“cannabis smoke”) as “reproductive toxicants.” Companies that manufacture or sell cannabis products will be hit the hardest. However, manufacturers and sellers of cannabidiol (“CBD”) products may also be required to include a Prop 65 warning label.
California’s Proposition 65 law requires warnings labels on consumer products that the State of California has determined may cause cancer and/or reproductive harm. After a new chemical is listed, businesses will not be subject to enforcement actions for one year after the listing of the chemical. For cannabis smoke (as a reproductive toxicant) or THC, that means that businesses have until Jan. 3, 2021, to comply with the Proposition 65 warning requirements. Businesses should immediately take steps to assess whether their products will require Proposition 65 warnings in light of these new listings.
While cannabis smoke has been listed as a carcinogen for over a decade, the listing of THC will likely have a much greater impact on cannabis businesses. For businesses distributing cannabis products that are smoked, the new cannabis smoke listing means existing Proposition 65 warnings may only need to be updated to reference reproductive toxicity in addition to cancer. However, THC has not been listed in any capacity until now. By listing THC, California sought to encompass the wide range of methods by which cannabis is consumed. Cannabis products that are not smoked, such as edibles and vape cartridges, will also potentially be required to provide a Proposition 65 warning for THC. CBD products that contain any detectable level of THC may also require a warning. CBD products with 0.3% or less THC are exempted from the Federal Controlled Substances Act, but this exemption does not directly apply to Proposition 65. While California may establish a “safe harbor” exposure level for THC in the future, until that happens, CBD products with any detectable level of THC should carry a Proposition 65 warning label for THC.