Prior Proposition 65 Requirement was Limited to Smokeable Cannabis
California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, requires the State of California to maintain an updated list of toxic substances known to the state to cause cancer or reproductive toxicity. Persons or companies who offer products for sale in California containing Proposition 65-listed substances must provide an appropriate warning to the consumer (with limited exceptions), or face the prospect of penalties of up to $2,500 per day.
“Marijuana smoke” was added to the Proposition 65 list in 2009 solely as a cancer-causing agent. After that date, a cancer-specific warning was required for all smokeable cannabis. In addition, if a cannabis product contained other Proposition 65 listed substances—such as certain heavy metals or pesticides—warnings were applicable. However, THC was not a listed Proposition 65 substance. As such, no warning was required for non-smokeable cannabis products, including hemp-derived CBD products, unless those products contained other listed substances.
New Requirements Expand Proposition 65 Requirements, Including to Hemp-Derived CBD
On January 3, 2020, the State of California agency that oversees Proposition 65 (the Office of Environmental Health Hazard Assessment) updated the Proposition 65 list to (1) add “cannabis (marijuana) smoke” as a reproductive toxin causing developmental harm (in addition to the prior listing as a cancer-causing agent), and (2) add Δ9-tetrahydrocannabinol (Δ9-THC) as a reproductive toxin causing developmental harm.
The one-year grace period to provide adequate warnings based on these new listings expired on January 3, 2021. As such, to avoid a potential claim of a Proposition 65 violation:
- persons offering for sale smokeable marijuana should now be providing appropriate warnings that address both cancer and reproductive/developmental harm, and
- persons offering for sale any THC-containing products—including, but not limited to, edibles/concentrates/vapes and hemp-derived CBD products—should now be providing an appropriate reproductive harm warning.
It is important to note that the warning requirement applies to any products offered for sale as of January 3, not just products manufactured or distributed to retailers after that date. Any items “on the shelf” (either physically or online) after January 3, 2021 are subject to the newly applicable Proposition 65 warning requirements, regardless of packaging dates.
Impact of New Requirements – Potential Legal Enforcement and Penalties
Given the heavily-regulated nature of the cannabis industry, persons violating the new Proposition 65 requirements could face enforcement actions by the California Attorney General, district attorneys, or (in cities with populations of over 750,000) city attorneys. However, even if government enforcement does not occur, penalties may also be sought by private “citizen” enforcers of Proposition 65, who are very active across the state. In addition to seeking recovery of up to $2,500 per day of an alleged violation, enforcers may also seek recovery of their attorneys’ fees in prosecuting the action.
Citizen enforcers must serve the alleged violator with a notice of the alleged violation at least 60 days prior to initiating an enforcement action in court. Anyone receiving such a notice should promptly seek legal advice from experienced Proposition 65 defense counsel, with the goals of promptly:
- determining whether a viable defense to the Proposition 65 claim may exist;
- identifying and enforcing any potential right to defense and indemnification from another party in the chain of distribution for the product at issue;
- curing any alleged violation, in order to limit the number of days for which penalties may be available;
- if appropriate, negotiating a prompt settlement with the citizen enforcer, before the enforcer incurs attorneys’ fees to initiate a court proceeding.