California ruled that cannabis edibles should not exceed ten milligrams of THC per serving, while packages of edibles must have no more than 100 milligrams of THC. These regulations have raised much confusion regarding the accepted variance in these THC levels.
Conflicting Regulations Regarding THC
California’s two regulatory agencies that oversee the state’s cannabis industry are the Bureau of Cannabis Control and the California Department of Public Health. Both organizations released two seemingly contradictory regulations regarding edibles and their allowable levels of THC.
CDPH Regulations
CDPH regulations require strict adherence to the 10 milligrams of THC per serving and 100 milligrams of THC in a package.
BCC Regulations
The BCC, however, allows for a 10% variance in THC levels. In other words, an edible product could be deemed within legal limits by the BCC even if it exceeds more than 10 milligrams per serving.
Concern in the Marijuana Industry
The apparent contradiction in these two regulations left the industry unsure of how to proceed.
Concerns Regarding CDPH Regulations
Manufacturers were worried about losing their investment and development costs in products that unexpectedly failed CDPH regulations due to a slight variance.
Concerns Regarding BCC Regulation
Meanwhile, the BCC regulation raised concerns that edible products and infused beverages deemed legal under the ten percent variance would expose manufacturers, vendors, and industry members to product liability lawsuits.
Overall Industry Impact
Finally, the entire cannabis industry feared that this lack of clarity would increase regulatory costs, legal fees, and insurance premiums.
CDPH Attempts to Clarify THC Potency Concerns in Edibles
Thankfully, the regulatory agencies responded to industry concerns and clarified its rules. On Feb. 5, 2019, the CDPH, responding to the BCC’s reiteration, stated that it did not consider the BCC’s rule to conflict with its THC limit.
Final Determination
The final legal determination by both agencies is that edible cannabis products that exceed 10 milligrams of THC by less than 10% are legal for sale.
California Legal Statutes Remain Unchanged
Despite this clarification, however, industry members remain wary. While the CDPH’s public comments are helpful, the regulation itself remains unchanged. It expressly prohibits the sale of edibles that contain more than 10 milligrams of THC.
Industry Still Feels Vulnerable to Lawsuits
As a result, some are worried that the risk of liability remains unsolved – the regulation itself provides the basis for someone to claim that the product was unsafe, even though it was within the 10% variance.
As edibles continue to increase in popularity, there are genuine concerns that the manufacturers, distributors, and sellers of edibles that are within the 10% variance but above the 10-milligram legal limit are leaving themselves open to the potential for product liability lawsuits.
Other Unanswered Questions
Other questions also remain unanswered. For example, some have questioned whether vendors can advertise that a product exceeds 10 milligrams of THC if it falls within the 10% variance. At McElfresh Law, we will continue to monitor this issue and others as the regulatory environment evolves.
Call a San Diego Cannabis Lawyer for Help
San Diego cannabis attorney Jessica McElfresh understands the challenges you face since marijuana industry laws and regulations aren’t always straightforward. Attorney McElfresh provides you with experienced, knowledgeable, and practical help to help protect you from liability.
Reach out through our online contact form to learn more about how she works with cannabis businesses, or call her at 858-756-7107 to discuss how she can help.