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Confection Crisis

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The Washington State Liquor and Cannabis Board (LCB) recently announced during one of its meetings that beginning on April 3, 2019, retail cannabis stores in Washington will no longer be allowed to sell cannabis-infused hard candies, tarts, fruit chews, colorful chocolates, jellies or gummies. Shortly after announcing the LCB’s intention for a ban, the LCB issued a statement stating that it would temporarily pause that decision. Starting in mid-October, the LCB set a 30-day public comment period to review alternative options in regulating edibles, versus outright banning them.

According to the LCB, concerns had been raised by the LCB itself, stakeholders and the public regarding cannabis-infused edible candy. When the LCB conducted a review of all previously-approved cannabis-infused candy to ensure that none of those products were appealing to children, it found that in fact, some approved products would meet the state’s definition of being “especially appealing to children.” In particular, the LCB is concerned about “candy – hard candy (of any style, shape or size) and tarts,” and “fruit chews, jellies and gummy type products.”

In the Washington State Legislature’s cannabis chapter WAC 314-55-077(7), it describes the adopted restrictions regarding public safety concerns related to an increased risk of accidental ingestion of cannabis by children. “A marijuana processor is limited in the types of food or drinks they may infuse with marijuana,” the chapter states. “Marijuana-infused products that are especially appealing to children are prohibited. Products such as, but not limited to, gummy candies, lollipops, cotton candy, or brightly colored products, are prohibited.”

The LCB will allow licensees to sell through their product(s) until existing inventory is depleted or until April 3, 2019, whichever comes first. In order to determine whether a product qualifies or will be banned, all labels and products must be resubmitted to the LCB to meet the rule change, which goes into effect January 1, 2019.

In evaluating whether a product is allowed or not, the LCB will consider the product’s appearance, its similarity to commercially available products that are marketed toward and are especially appealing to children and the color of the product. Some examples provided by the LCB of allowable cannabis-infused products include beverages, baked goods, capsules, chips, crackers, sauces, spices and tinctures. Examples of cannabis-infused products that may be allowed depending on their appearance include chocolate, cookies, caramels and mints. For example, chocolate in its original color that is not coated, dipped, sprayed or painted with any type of color will be allowed, as will cookies that do not contain sprinkles or frosting.

 

Given the subjectivity in evaluating whether a product is especially appealing to children, it will behoove producers to err on the side of caution when developing their cannabis-infused products. At the time of this writing, we will undoubtedly see pushback on this rule change, not just from processors that have built their businesses on such products, but from consumers who will face a decrease in the types of products available for purchase.