Authors: Christopher M. McHugh and Andrew J. Goodwin
SEIGFREID BINGHAM, PC
Kansas City, Missouri, August 30, 2019
If Missouri is like other markets, long term success in the medical marijuana business will be driven largely by how well companies develop and market their brands. Missouri has yet to impose many of the limitations on marijuana advertisement that have been seen in other states, like limitations/restrictions on billboards, digital, print and radio advertisement, to name a few. But the first wave of regulations does include rules on facility signage and packaging which will be important to understand before the industry begins in earnest in the coming months.
Facility Signage. The strictest limitations apply to facility signage and will be most relevant to dispensaries (cultivators and manufacturers may choose to avoid prominent signage for security reasons). The Department of Health has issued regulations limiting both the words and images that can be displayed on outdoor signage, as well as any indoor signage visible to the public. The only permissible words are the company’s business name or trade name, and its contact information (address, phone number, and website). The word restriction does not prohibit other signage commonly found at businesses, like hours of operation, parking, no trespassing, etc. But other written signs related to marijuana (e.g., “Medical Marijuana Sold Here”) are prohibited. With respect to images, state regulations prohibit depictions of marijuana (like leaves), marijuana products, paraphernalia, and related images (like smoke). Similar regulations in other markets have led to the ubiquitous green cross on dispensaries. As always, beware of additional restrictions on signage imposed by the local government, although we have not seen many of those yet.
Importantly, these limitations on visible facility signage do not apply to other marketing like advertisements, packaging, and interior displays not visible to the general public. For instance, a company could have advertisements, t-shirts, product labels or other marketing material depicting marijuana leaves or other images that would be prohibited on an outdoor/visible dispensary sign. So, although professional marketers emphasize the importance of brand continuity, you may decide that your marketing material should go beyond the sanitized logo designed for the side of your building.
Packaging. Additional specific requirements apply to packaging. Some of these requirements come directly from the text of Section 14 of the Constitution (“Amendment 2”), but the majority were issued by the Department of Health. For instance, Amendment 2 requires all retail packaging to be labeled conspicuously with “Marijuana” or “Marijuana-Infused Product.” The Department of Health added a requirement that packaging be labeled with “Warning: Cognitive and physical impairment may result from the use of Marijuana.” This seems easy enough, except the words must appear “in a font size at least as large as the largest other font size used on the package.” Because marijuana packaging can be rather small (concentrates, cartridges, etc.), it could be difficult to prominently display your desired text and also fit all the text required by the regulations. Other states have text size requirements for marijuana packaging, but they are typically either absolute (e.g., 10 point font, 1/16 inch, etc.) or relative to the “surrounding label text,” so Missouri is somewhat unusual in this regard.
All retail packaging must also include a label with the following information, in the following order:
- Marijuana weight (for flower, ounces or grams; for concentrates, grams; and for infused products, milligrams of THC);
- Dosage amounts, instructions, and duration of effect;
- Concentration of THC, THCA, CBD, CBDA and CBN;
- A list of all active and inactive ingredients (a grouping of ingredients, such as “proprietary blend” or “spices,” is not permitted);
- The cultivator or manufacturer from which the product originated; and
- A “best if used by” date.”
There is no font size requirement for this label, but like all text required by the regulations, it cannot be obscured by branding or design elements.
All retail packaging containers must be opaque, re-sealable, and child resistant. They cannot make claims of health benefits, be designed to appeal to minors, or be false, misleading or confusing.
Failure to follow packaging rules could lead to a fine of $5,000 and recall for either repackaging or disposal. In the case of false, misleading or confusing packaging, a facility’s business license could be suspended or revoked.
Although medical marijuana packaging is subject to many rules, and errors are costly, companies will still have plenty of freedom to design distinctive packaging that will be a powerful marketing tool.
Chris McHugh and Drew Goodwin lead Seigfreid Bingham PC’s Cannabis Practice Group, which is dedicated to helping plant touching and plant adjacent businesses meet all the different legal challenges in the marijuana and hemp industries.