Plain packaging, for those who are unfamiliar, was first developed for the tobacco industry in Australia, and refers to standardized or homogeneous packaging that can include virtually no branding (colors, imagery, corporate logos, trademarks) and must include government-mandated health warnings, together with any other required information. The appearance of all tobacco packaging is entirely standardized. In Australia, this legislation was introduced via the Tobacco Plain Packaging Act of 2011. Ireland, France, India, New Zealand and the United Kingdom have also introduced tobacco plain packaging legislation, and some countries, including South Africa, have even introduced plain packaging legislation for infant formula. Several other countries have expressed intent to develop plain packaging regulations.
The idea behind plain packaging legislation is that removing branding and marketing from products the government deems harmful to health will reduce consumption of those products. To further this objective, Australia also requires that tobacco companies include wildly graphic images of the health consequences of smoking tobacco. And many companies have expressed concern that plain packaging laws could be extended beyond tobacco to include the food and beverage (and alcohol) industries. It is not difficult to conceive that these same plain packaging laws could extend to the cannabis industry.
In fact, language contained in AB 266, one of the three pieces of California legislation that comprise the Medical Marijuana Regulation and Safety Act (MMRSA), indicates that some degree of plain packaging is already on regulators’ minds. Section 19347(b) states, “Only generic food names may be used to describe edible medical cannabis products.” This provision is vague, and will need to be fleshed out by regulators during the rule-making process, but could be interpreted as a prohibition on branded products. Obviously, the effects of such a prohibition in California would be dramatic, where companies have invested vast sums of money in brand development and marketing.
This language is in addition to a host of other labeling requirements. Here is the relevant portion of the legislation:
(a) Prior to delivery or sale at a dispensary, medical cannabis products shall be labeled and in a tamper-evident package. Labels and packages of medical cannabis products shall meet the following requirements:
1. Medical cannabis packages and labels shall not be made to be attractive to children.
2. All medical cannabis product labels shall include the following information, prominently displayed and in a clear and legible font:
A. Manufacture date and source.
B. The statement “SCHEDULE I CONTROLLED SUBSTANCE.”
C. The statement “KEEP OUT OF REACH OF CHILDREN AND ANIMALS” in bold print.
D. The statement “FOR MEDICAL USE ONLY.”
E. The statement “THE INTOXICATING EFFECTS OF THIS PRODUCT MAY BE DELAYED BY UP TO TWO HOURS.”
F. The statement “THIS PRODUCT MAY IMPAIR THE ABILITY TO DRIVE OR OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”
G. For packages containing only dried flower, the net weight of medical cannabis in the package.
H. A warning if nuts or other known allergens are used.
I. List of pharmacologically active ingredients, including, but not limited to, tetrahydrocannabidol (THC”, cannabidiol, (CBD), and other cannabinoid content, the THC and other cannabinoid amount in milligrams per serving, servings per package, and the THC and other cannabinoid amount in milligrams for the package total.
J. Clear indication, in bold type, that the product contains medical cannabis.
K. Identification of the source and date of cultivation and manufacture.
L. Any other requirement set by the bureau.
M. Information associated with the unique identifier issued by the Department of Food and Agriculture pursuant to Section 11362.777 of the Health and Safety Code.
(b) Only generic food names may be used to describe edible medical cannabis products.
Given the onerous labeling requirements we’ve seen for cannabis, not only in the MMRSA, but in all the other states in which we represent cannabis clients, it would not surprise us to see lobbying or legislation for plain packaging in the industry. We hope California rule-makers do not spin the language in AB 266 into an off-shoot of plain packaging rules, but we’ve seen crazier things happen.
So stay tuned.