Member Article

On May 5, 2020, two (2) relatively rare notices of violation involving marijuana smoke were filed with the California Department of Justice. I refer to them as rare, because in the one year period prior to these notices (May 1, 2019-May 8, 2020), there have only been four (4) notices of violation filed involving marijuana smoke. That is a miniscule number considering there were two thousand four hundred and ten (2,410) 60- day notices of violation filed in 2019. This suggests that most companies are complying with the warning requirements related to marijuana smoke under Prop. 65.

The two notices were filed on behalf of Kelli Smith, a California citizen, by Kevin Cole, Esq. of the KJC Law Group against The Pottery, Inc. a dispensary in Long Beach and California Herbal Remedies, Inc., a dispensary in Los Angeles. Both notices claim that the dispensaries are selling products, which cause an exposure without a warning in violation of Prop. 65. In particular, the products are all medical marijuana “flowers” or “buds” sold to California residents for consumption by smoking. Marijuana smoke has been on the Prop. 65 list since 2009 and is identified as a carcinogen.

The only other two notices involving marijuana smoke in the one-year period are from August 20, 2019. In those notices, Michael DiPirro filed two supplemental notices of violation, intending to supplement notices from April 2018 against multiple entities related to marijuana smoke and marijuana intended for smoking and paraphernalia. DiPirro’s notices involve marijuana buds intended for smoking, water bongs, smoking pipes, rolling papers and blunts.

Since June 2009, marijuana (cannabis) smoke has been listed as a carcinogen by the State’s Qualified Experts (“SQE”). On January 3, 2020, marijuana smoke and delta-9-tetrahydrocannabinol (THC) were listed by OEHHA as also causing developmental toxicity by the SQE. However, companies are not required to provide the developmental toxicity warning until January 3, 2021, since the warning requirements take effect twelve (12) months after the date that a chemical is added to the Prop. 65 list. Currently, there are no safe harbor levels for either chemical. The 2018 Farm Bill exempts CBD products with 0.3% or less THC from the definition of “marijuana” under the Federal Controlled Substances Act. However, compliance with federal law is not the equivalent of compliance under Prop. 65. Simply put, at least until January 1, 2021, companies must insure compliance with marijuana smoke warning requirements, and also gear up for compliance with the new warnings by the end of the year. The THC warning could apply to items that are not smoked such as edibles and vape cartridges.

Further, if a dispensary allows for smoking on site, an exposure/environmental warning might also be required in a conspicuous area that an average consumer can see.

Many edible cannabis products also allegedly contain myclobutanil and carbaryl, which are on the Proposition 65 list. Numerous Prop. 65 notices have been filed involving these chemicals. On April 23, 2020 a notice was filed against a company that manufactures and sells hemp oil containing carbaryl without a proper warning. On a more benign note, many notices have been filed involving carbaryl in balsamic vinegar. The most recent notices involving mycolbutanil are from late 2017 in vape cartridges. I presume that the dearth of mycolbutanil notices after 2017 suggest that companies are now providing compliant warnings on these products.

These notices highlight that companies (especially consumer facing companies of products that can be ingested and smoked) must be incredibly diligent in their compliance with Prop. 65.