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California Tries to Clarify THC Limits in Edibles

Mar 06 2019, by Jessica McElfresh in Legal Blog, Marijuana Business

As the cannabis industry in California continues to grow, it has faced some regulatory challenges as the state tries to ensure that the products are safe. After much discussion and drafting, California finally released its permanent cannabis regulations in January of this year. While these rules are a major step in creating long-term stability for the cannabis industry, they have also raised additional questions that require further attention from regulators.

San Diego cannabis lawyer Jessica McElfresh is helping cannabis businesses navigate this new regulatory landscape. From business formation to litigation, she has the knowledge and experience to meet all of your business needs. To schedule an initial consultation of your case, contact McElfresh Law today at (858) 756-7107.

Conflicting Regulations Regarding THC

A lack of clarity arose when two California regulatory agencies – the Bureau of Cannabis Control (BCC) and the California Department of Public Health (CDPH) – released two seemingly contradictory regulations regarding edibles and their allowable levels of THC. CDPH regulations require that edibles contain no more than 10 milligrams of THC per serving, and packages of edibles are prohibited from containing more than 100 milligrams of THC.

The BCC, however, would allow for edible products to pass testing requirements if they were within a 10 percent variance. In other words, an edible product could be deemed within legal limits even if it exceeded more than 10 milligrams per serving.

Lack of Clarity a Cause for Concern in the Marijuana Industry

The apparent contradiction in these two regulations left the industry unsure of how to proceed. Manufacturers were worried about losing their investment and development costs in products that unexpectedly failed CDPH regulations due to a slight variance. Meanwhile, the BCC regulation was raising concerns that products that were deemed legal under the 10 percent variance would expose manufacturers, vendors, and industry members to product liability lawsuits because the product contained more than 10 milligrams of THC. Finally, the industry was fearful that this lack of clarity would increase regulatory costs, legal fees, and insurance premiums.

Clarifications Concerning the Variance

Thankfully, the regulatory agencies have responded to industry concerns and clarified its rules. On February 5, 2019, the CDPH, responding to the BCC’s reiteration of its rule, stated that it did not consider the BCC’s rule to conflict with its own THC limit. In other words, any edible product that exceeded 10 milligrams by less than 10 percent would be deemed legal for sale under both regulations.

Unanswered Questions Remain

Despite this clarification, however, industry members remain wary. While the CDPH’s public comments are helpful, the regulation itself remains unchanged, and expressly prohibits the sale of edibles that contain more than 10 milligrams of THC. 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 percent variance.

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 percent variance. We will continue to monitor this issue and others as the regulatory environment continues to evolve.

Call a San Diego Cannabis Lawyer for Help

San Diego cannabis attorney Jessica McElfresh understands the challenges you face, particularly when marijuana industry laws and regulations aren’t as clear as necessary. She can provide you with experienced, knowledgeable, and practical help that protects you from liability, but gives you the freedom you need to build your business. Reach out online to learn more about how she works with cannabis businesses, or call her at (858) 756-7107 to discuss how she can help.