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.