Beginning Jan. 3, California cannabis products will be required to have labeling warning consumers that the products could increase their risk of exposure to toxins that cause cancer and birth defects.
The new requirement is mandated by Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The legislation requires such warnings on consumer products that are known by the state to expose users to carcinogens or toxins that cause birth defects or other reproductive harm.
- THC and cannabis smoke were added to the state’s list of chemicals known to cause reproductive harm on Jan. 3, 2020. Cannabis smoke had been listed as a carcinogen by the state since 2009.
- With the new listings, companies had a year to update their posted warnings on THC products to include both cancer and reproductive toxicity. That deadline is Jan. 3, 2021.
- Prop 65 generally applies to businesses with 10 or more employees, but smaller companies aren’t necessarily protected. Any business within a product’s supply chain – including those with fewer than 10 employees – can be sued if a plaintiff claims a required warning was not provided.
- Violators also open themselves to enforcement action from state regulators. Fines can be as high as $2,500 per day per violation.
- Historically, Prop 65 violations have often been enforced through consumer lawsuits, and typically settled out of court.
Because the state does not list a safe limit for THC, products with any detectable trace of THC, including CBD products below the 0.3% THC threshold, are subject to the Prop 65 warning requirements.
- Businesses that provide “clear and reasonable” warnings, as defined by the state, are afforded so-called “safe harbor” protections from Prop 65 violations and enforcement. The warnings must be prominently displayed and include language specified by the state.
- The Prop 65 requirements also apply to products sold in the state by out-of-state companies and to products sold online.
- Any products that enter the supply chain before Jan. 3 but end up on a retail shelf after Jan. 3 will still be required to have the warning label. So businesses are encouraged to get warnings in place ahead of time.
A list of all the chemicals subject to Prop 65 warnings can be viewed on the California Office of Environmental Health Hazard Assessment’s website here: The Proposition 65 List.