New York Releases Proposed Regulations for Packaging/Labelling and Marketing/Advertising of Adult Cannabis Products | Hodgson Russ LLP

The New York Cannabis Control Board (“the Board”) has released proposed regulations for the packaging, labeling, marketing and advertising of cannabis products for adult use. The proposed regulations detail what must be included and what is prohibited on the packaging and labels of cannabis products. The regulations also outline permitted and prohibited activities regarding the marketing and advertising of cannabis products by retailers.

Packaging and labeling

The regulations require the packaging of cannabis products sold at retail to be child-resistant, tamper-proof and fully enclosed. The package should display a label with important information, including: milligrams per individual serving of THC; total CBD content; milligrams per packet of total THC; amount of total THC; number of total servings; and the weight of the product. Labels must adhere to font and size restrictions and include what could be described as a “nutrition facts” section. This section should include, among other things, a list of ingredients, all major allergens, best before date, best before date, proper storage conditions, and clear instructions for use.

The packaging must also display one of the state-approved symbols indicating that the product is a cannabis product. Symbols include a marijuana leaf displayed inside a yellow warning triangle with the letters “THC!” featured prominently, and the New York State logo with a “21+” graphic. Regulations require packages to include contact information for the manufacturer or distributor of the product, as well as a scannable barcode linked to a certified report from a cannabis lab.

Packages must also display a series of warnings, including that the product: contains THC or cannabis; should only be consumed by persons 21 years of age and older; should not be used if you are pregnant or breastfeeding; and should be “KE[PT] OUT OF REACH OF CHILDREN AND PETS. In order to meet all of these labeling requirements, licensees may affix multiple labels containing the required information. This includes concertina, expandable, expandable or layered information displays that help complement small packages.

In addition, packaging and labeling cannot promote cannabis use by young people. For example, retail packaging may not be made attractive to persons under the age of 21 and may not contain any pictures, images or graphics, unless otherwise specified by the Office of Cannabis Management. This prohibition extends to the use of cartoons, cartoon-like fonts, bright or “neon” colors, and the use of words like “candy” or variations like “kandeez.” Labeling may not be misleading, promote overconsumption or promote prices, discounts or coupons. The use of the terms “artisanal” and “organic” is also subject to labeling restrictions.

The regulations also impose requirements and compliance with environmental regulations. Licensees must use packaging that contains at least 25% post-consumer recycled content and must submit an environmental sustainability program. The legislation also encourages the reuse and recycling of retail packaging, as long as the packaging meets specific quality and cleanliness standards.

Marketing and Advertising

The proposed settlement permits licensees to engage in “reasonable advertising practices”. Marketing and advertising of cannabis products must not compromise public health or safety, promote consumption by children, or attract anyone under 21 years of age. or printed communication. However, the licensee must have reliable evidence (and bear the burden of proving) that at least 90% of the audience for the advertisement is reasonably expected to be at least 21 years old. Advertising should also clearly and prominently include warnings about responsible drinking, accidental drinking, and overdrinking, as well as resources such as the National Poison Control Center phone number, among others.

There are some notable advertising restrictions. These include: bans on advertising in the form of billboards; advertise within 500 feet of an elementary school or similar institution; promoting product potency or THC concentration; and using terms like “organic” or colloquial terms like “weed”, “stoner” or “sticky buds”. Any talent or actor depicted in cannabis advertising must be at least 25 years old.

Restrictions on “exterior signage” have their own section in the draft regulations. For example, exterior signage for a retail store is limited to displaying basic vendor information such as name, address, and nature of business. Signage must be on a permanent structure and cannot use neon lights, vehicles or commercial mascots. Another notable restriction prohibits the depiction of cannabis, cannabis products, or the action of smoking or vaping in advertisements. Outdoor advertisements are prohibited on signs in arenas and stadiums, but may be displayed in adult-only facilities.

License suspension or revocation and fines are among the penalties that a licensee who violates these proposed new requirements may face. Once in force, licensees must pay particular attention to scrupulously complying with the regulations at every stage of the packaging, labeling, advertising and marketing processes.