TBD on THC

Next year when establishments in Illinois begin selling recreational Cannabis products, how will consumers know what to look for to identify and use these products? In this new and emerging field there are a lot of unknowns. The Cannabis Act (the “Act”) (which is House Bill 1438, the Cannabis Regulation and Tax Act) isn’t even 100% sure in its own guidance, reserving the right to update and modify the Act as new information becomes available. In the meantime, let’s review the Act’s product packaging and labeling requirements as they stand now.

General rules

At InfoLawGroup, we are analyzing whether Cannabis packaging regulations will align with other highly regulated substances, such as over-the-counter medication or alcohol. At the outset, typical marketing legal rules apply, for example, packages must not contain information that is false or misleading. The Act also includes a handful of rules that closely mirror alcoholic beverage packaging regulations, for instance, packaging may not promote excessive consumption, depict anyone under 21, show the image of a cannabis leaf, or include any imagery likely to appeal to minors.

Cannabis Product Packaging

Of course, regulators’ utmost concern in allowing any controlled substance is public safety. The Cannabis Act is no exception.

The Act includes six main components that address the container itself. The package must be: (1) sealed, (2) odor-proof, (3) child-resistant, (4) individually packaged, (5) a maximum of 100 milligrams, and (6) contain a compliant label affixed to the package.

For this installment in our series on the Cannabis Act, we’ll focus on number six: the label, which will be most apparent and obvious to consumers. The Act provides detailed, albeit adaptable, instructions to marketers, growers, and cultivators regarding what must (and must not) appear on recreational Cannabis labels.

Cannabis Labels

When a product is mandatorily registered with the Illinois Department of Agriculture, such registration must include the product’s label. Labels must conform to labeling requirements in the Illinois Food, Drug, and Cosmetic Act and be printed in English and other languages as required by the Department of Agriculture.

Labels must include considerable information that will be familiar to consumers, such as:

1. The name and PO Box of the cultivator or grower.

- This is similar to the manufacturer listed on consumer packaged goods.

2. The common name and registered name of the product.

- This is similar to seeing a brand/trade name like Tylenol appearing with acetaminophen.

3. A serial number.

- This is akin to a batch or lot number listed on many consumer products, and serves the same purpose for potential tracking and recalls.

4. Date of the harvest and “use by” date.

- This is similar to an expiration date on most consumable products.

5. Quantity in ounces.

6. List of ingredients, which must include any colors, artificial flavors, and preservatives listed in descending order by predominance of weight shown with common or usual names. A bit unfamiliar, is that the list must contain a content list including the minimum and maximum percentage content by weight for specified ingredients. As applicable, ingredient lists must also contain any solvents, gases, chemicals, and compounds used including the extraction method.

7. Lastly, warning statements , based on what type of product it is. This is an example of a specific place where The Department of Public Health reserves the right to update the regulation.

For products that are sampled (tested), the Act requires that the labels must include the date of final testing, the testing lab information, and its pass/fail rating. This is an interesting requirement, and at InfoLawGroup, we’ll certainly be watching to see what expectations the Department of Agriculture has for consumers to interrupt and rely on this information. Less surprising, but equally as unique, is a restriction under the Act that prohibits product labels from implying any endorsement by the State of Illinois or any of its representatives. It is likely that the state of Illinois is making an effort to separate themselves from liability, but how does this impact consumers? Will cannabis buyers be looking at the product labels to see if products are “approved” and legal?

Unsurprisingly, there are more specific rules for Cannabis-infused products intended for consumption, including the requirement to list the total milligram content of THC and CBD. It’s also worth noting that such items may not include more than a total of 100 milligrams of THC per package, though a package may contain multiple servings of 10 milligrams of THC as long as it indicates the individual serving sizes. This is another area where The Department of Agriculture specifically states that they may modify the total amount of THC allowed for each package or the total amount of THC allowed for each serving size.

Enforcement

It is the Department of Agriculture’s responsibility to monitor and enforce packaging and labeling requirements and they reserve the right to modify these requirements as they see fit in the future. It will be interesting to watch the rules unfold in the coming months before the Act becomes effective in 2020.

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i - All cannabis: "This product contains cannabis and is intended for use by adults 21 and over. Its use can impair cognition and may be habit forming. This product should not be used by pregnant or breastfeeding women. It is unlawful to sell or provide this item to any individual, and it may not be transported outside the State of Illinois. It is illegal to operate a motor vehicle while under the influence of cannabis. Possession or use of this product may carry significant legal penalties in some jurisdictions and under federal law."

Cannabis that may be smoked: "Smoking is hazardous to your health."

Cannabis-infused products (other than those intended for topical application): "CAUTION: This product contains cannabis, and intoxication following use may be delayed 2 or more hours. This product was produced in a facility that cultivates cannabis, and that may also process common food allergens."

Cannabis-infused products intended for topical application must contain a statement "DO NOT EAT" in bold, capital letters.