Washington State’s Liquor Control Board issued new “emergency” rules yesterday, mostly dealing with marijuana-infused food products, commonly called edibles.  The rules were a reaction to recent stories of individuals who ingested too much cannabis from their edibles (see Maureen Dowd’s story here), and of children mistaking cannabis candy for the real thing.

If you are making edibles for sale in Washington State, or if you are selling edibles to recreational consumers (come July 8), or even if you are selling medibles to cannabis medical patients, you need to become familiar with these new laws and act accordingly. Though aimed only at recreational cannabis, we can tell you that anyone selling cannabis who does not comply with these rules is putting themselves at risk for a civil lawsuit and perhaps even criminal charges.

Probably the most important provision of the new rules is the one requiring that ALL marijuana-infused products, packages, and labels be approved by the State Liquor Control Board BEFORE sale:

A marijuana processor licensee must obtain approval from the liquor control board for all marijuana-infused products, labeling, and packaging prior to offering these items for sale to a marijuana retailer. The marijuana processor licensee must submit a picture of the product, labeling, and packaging to the liquor control board for approval.

If the liquor control board denies a marijuana-infused product for sale in marijuana retail outlets, the marijuana processor licensee may request an administrative hearing per chapter 34.05 RCW, Administrative Procedure Act.

The new rules prohibit any marijuana product from being “designed to be especially appealing to children” and require labeling on all marijuana products to state that “this product contains marijuana.”

The new rules also mandate that edible marijuana products must have their serving size “prominently displayed on the packaging” and be “homogenized to ensure uniform disbursement of cannabinoids”:

Marijuana-infused products in solid form that contain more than one serving must be scored to indicate individual serving sizes, and labeled so that the serving size is prominently displayed on the packaging.

Marijuana-infused products must be homogenized to ensure uniform disbursement of cannabinoids throughout the product.

The new rules also ban retail shops from having in their store any dairy products, canned foods, fruit or vegetable juices, butters, dried or cured meats, or pies that contain eggs.

The rules prohibit selling infused foods that “require time-temperature control to keep them safe for human consumption and prevent the growth of pathogenic microorganisms or the production of toxins” and any “food that requires refrigeration, freezing, or a hot holding unit to keep it safe.”

Other food items that may not be infused with marijuana to be sold in a retail store are:

  • Any food that has to be acidified to make it shelf stable;
  • Food items made shelf stable by canning or retorting;
  • Fruit or vegetable juices;
  • Fruit or vegetable butters;
  • Pumpkin pies, custard pies, or any pies that contain egg;
  • Dairy products of any kind such as butter, cheese, ice cream, or milk; and
  • Dried or cured meats.

Dairy butter may still be used to prepare “allowable marijuana-infused” products.

Per WAC 314-55-104, a marijuana processor may infuse dairy butter or fats derived from natural sources and use that extraction to prepare allowable marijuana-infused solid or liquid products meant to be ingested orally, but the dairy butter or fats derived from natural sources may not be sold as stand-alone products.

“The recipe for any marijuana-infused solid or liquid products meant to be ingested orally must be kept on file at the marijuana processor’s licensed premises and made available for inspection by the liquor control board or their designee.”

Marijuana processors that produce marijuana-infused solids or liquids for oral consumption are required to pass a processing facility inspection:

A marijuana processor producing a marijuana-infused solid or liquid product meant to be ingested orally in a processing facility as required in WAC 314-55-015(10) must pass a processing facility inspection. Ongoing annual processing facility compliance inspections may be required. The liquor board will contract with the department of agriculture to conduct required processing facility inspections. All costs of inspections are borne by the licensee and the hourly rate for inspection is sixty dollars. A licensee must allow the liquor control board or their designee to conduct physical visits and inspect the processing facility, recipes and required records per WAC 314-55-087 during normal business hours without advance notice. Failure to pay for the processing facility inspection or to follow the processing facility requirements outlined in this section and WAC 314-55-015 will be sufficient grounds for the board to suspend or revoke a marijuana license.

These are “emergency” rules, meaning they expire in October and between now and then the Liquor Board will open a public comment period and craft more specific permanent rules.

What is most surprising about these rules is not the rules themselves, but that the Liquor Board waited so long to enact them. We say this because our law firm’s compliance lawyers have been advising our clients for years to be especially careful with edibles and to label them clearly and to homogenize and list out the amount of cannabis/cannabinoids/THC in each portion. We have also for years made labeling and packaging and food safety a prominent part of our marijuana compliance packages. We have always considered this compliance advice important both to protect our clients’ customers/patients and to protect our clients from civil (or maybe even criminal) liability.

For our previous writings on the need for appropriate cannabis labeling, check out Cannabis Products and Dosing: Educate, Educate, Educate and Label, Label, Label and Pot Puppies? Let’s Talk Labeling and Packaging. NOW.

  • Irie

    Why would the LIQUOR board have anything to do with cannabis ? Aren’t they suppose to worry about alcohol not pot?

  • cassarooni

    In Washington state, the LRB is the governing body over the laws that gave rise to legal use of marijuana (Initiative 502). Coincidentally, the state got OUT of the liquor sales gig just in time to have staff limited to a handful as I-502 passed and now is struggling with the volume of applications for MJ licenses from prospective producers, processors and retailers. This body is the exact right sort of entity to oversee this as they have a century of experience managing “purveyors of sin” from brewers, vintners, distillers and the like. They continue to oversee the import, creation, distribution and consumption of alcohol so don’t fret. It’s not like they’re not doing that job, too. Just think “same song, different verse” on this topic.
    More info at: http://www.liq.wa.gov/

    • SteveSarich

      They screwed up a liquor monopoly and got fired by initiative. I predict that they’ll get fired again for screwing up recreational marijuana.

      Their “Emergency” rule-making is illegal too, by the way. Just read the statute. Failing to do your job is not one of the qualifiers for being able to call for emergency rule-making. I spoke with the attorney general’s office on Friday, and again today, and they agree. The attorneys at CannaLaw might want to have a look at this statute and force these idiots to follow it. The rule-making process is there for good reason and we should not let them continue to skirt the law with a series of “emergencies” that don’t comply to the statue.

  • SteveSarich

    Apparently no one at the LCB, or CannaLaw, thought to look at the Washington State Retail Food Code (WAC 246-215). The Department of Health has determined that cannabis-infused edibles fall under the definition of “adulterated” food products and cannot be sold in Washington. While the LCB claims that the DOH told them that selling infused food that required refrigeration was potentially dangerous, they failed to tell them it was illegal?

    I don’t think we’re getting the straight story from the LCB.

    http://mynorthwest.com/108/2554611/Washingtons-First-Cannabis-Food-Truck-Cant-Open–All-Edibles-Are-Illegal-in-State-Run-Marijuana-Stores

    I guess CannaLaw will have more angry clients calling on Monday.

    Steve Sarich
    Cannabis Action Coalition

  • Yawn

    SteveSarich

    Why the hell are you even here, Steve? After YOUR major mess up of

    CAC v. Kent. Remember this?

    http://www.cannalawblog.com/a-bad-court-of-appeals-decision-leaves-mmj-hanging/

    Yeah, like mmj is definitely illegal, with only affirmative defense. But that’s not all,
    collective gardens are illegal, also. Where is your SSC appeal? Oh yeah,
    there isn’t one. Nobody is going to sue the state and nobody is going
    to stir up shit, except in your self-delusions of grandeur. Go back taking
    tastefully nude pictures of girls, you failed excuse of a human being.

    • SteveSarich

      If you’re going to be a snarky jerk, you should at least know what you’re talking about. The case is before the Supreme Court and should be decided by this fall when they’re back in session. In the meantime, the stay ordered by the Supreme Court is still in place and the stores are still open.

      The Supreme Court, in “Kurtz”, has already said that we have an absolute defense, not just an affirmative defense.

      You obviously don’t read anything but Facebook.

      • GoDucks

        just because your petition is up for review does not make an accepted
        case and a final ruling. Most likely it will be denied or maybe, let
        the legislators deal with it and maybe decide if that fails.
        Honestly, just takes a desist letter to the property owners who allow
        these stores and most of these stores will close within a month, if not sooner.

        Re-read Kurtz. Great if you are truly sick and have medical necessity
        in court, but I doubt the jury will be sympathetic if you are a grower
        caught with 1000 plants. Nice porno pictures and stop using that
        younger picture of yourself, you old, fat fart.

        • SteveSarich

          You really don’t know what you’re talking about. The Supreme Court issued a stay to keep Kent from enforcing their ordinance until this issue is settled. There are other cases, at least one criminal case, before the Supreme Court that also hinge on the very same issues, so it’s very unlikely that Court would simply ignore the critical issues in this case, hoping that the legislature would solve it for them. That’s THEIR job, after all. For now, the stay is in place and the stores are still open.

          I don’t shoot “porno”, but I’m sure you can find all of that you want on the internet for free. You won’t find any of my photography on any porn site….sorry.

          There are countless, more recent, photos of me all over the internet if you’re really in to pictures of me….but frankly that’s a little weird. I am working on my weight, but there’s not much I can do about my age….sorry if that disappoints you.

          Any other childish insults you’d like to throw out there to show off your intellect?

      • sh

        Wow…..I’m not on Facebook, however, I was reading out of boardim and what the laws are on selling edibles to cannabis legal stores……unbelievable how y’all talk to each other just fighting you should be cool and mellow! Happy holidays!

  • SteveSarich

    NEWS FLASH…..According to the Department of Health, cannabis-infused brownies are NOT FOOD! (If you can figure that you, please let everyone know)

    The Liquor Control Board is ILLEGALLY making “emergency” rules. This rule-making process does not qualify for an “emergency” exemption to the rule-making process. They have been continually using this process every time they want to make new rules, rather than holding the hearings that are required by the law.

    Failing to do your job for the last two years does NOT constitute an “emergency” under the statute. You can’t CAUSE the emergency by failing to take action on problems that were clearly foreseeable. Since no licenses for food products (or whatever they are now calling them to get around WAC 246-215) have been issued, there is no public health concern. No one is selling these products yet….so…no emergency exists. The State AG agrees with me.

    This is an issue that Hilary might want to look into on behalf of her clients that will be effected by these “emergency” rules. If brownies, and other edibles, are not “food”, I guess there’s no reason to have kitchen’s inspected, right?

    • max wilson

      Not food eh…^^ this guy has never missed a meal in his life.

  • Mike Reveile

    According to the Department Of Health… McDonald’s Hamburgers ARE food.

  • Cah

    I want to open up a edible donut shop, is it possible now

  • Tog-el

    What is the deal in Oregon. Seeking clarity on manifacting and distributing med-food in Oregon . Please help guide me . Thank you

  • Tobi Walker

    And the difference between a “Gel-cap” and a “gummy candy” is? And putting “3 1/2 servings” into the labeling on a “snack size” bag of potato chips stops folks from eating the whole bag at a single go?