New York Regulators Approve New Rules on Packaging, Labeling, Advertising and Testing As Part of Its Adult-Use Retail Market Launch

By Steven Perelman and Leslie Robnett

The Cannabis Control Board (“CCB”) of New York State’s Office of Cannabis Management (“OCM”) held an important special board meeting in which it approved several resolutions implementing New York’s Marihuana Regulation & Taxation Act (“MRTA”).  Signed into law on March 31, 2021, the MRTA legalizes adult-use cannabis (also known as marijuana, or recreational marijuana) in New York State.Chairperson Tremaine Wright explained that the approved resolutions “were selected as the first sections for consideration because they will help ensure products have been safely tested with appropriate consumer protection labeling.”  Chairperson Wright also explained “the need to expand our cannabis laboratory testing capacity within the state to ensure we have enough third party labs online and ready to properly test regulated cannabis products.”  To that end, the CCB approved two resolutions addressing regulation of:

    • Packaging and Labeling and Marketing and Advertising
    • Cannabis Laboratory Testing.

Part 128—Packaging and Labeling.  The CCB approved packaging and labeling regulations to satisfy two stated goals: (1) to maintain safety and quality; and (2) to inform consumers about the risk of consumption.  To that end, the proposal would require:

    • Packaging that is child resistant, tamper evident, nontoxic and fully enclosed to prevent product contamination;
    • Graphics or branding devoid of misleading statements or design that would be attractive to children;
    • Labeling components to include warnings, serving size, potency, ingredients, usage and storage instructions; and
    • All packaging must include the universal warning symbol designed by the CCB.

The CCB also explained that the proposal achieves the Packaging Environmental Sustainability Program implemented as part of the MRTA’s unprecedented Seeding Opportunity Initiative. To address this important initiative, the proposal:

    • Encourages reuse and refilling strategies and limits single-use plastics to a minimum post-consumer content of 25 percent; and
    • Requires applicants (depending on the license type) to submit an environmental sustainability program for packaging as part of the application; and

Part 129—Marketing and Advertising.  The CCB designed the following marketing and advertising limitations to ensure that adult-use products do not target youth or encourage overconsumption:

    • No images or audio of children or cartoons including actors that are less than 25 years of age.
    • Placement of advertising where 90 percent of the audiences would be the age of 21 or over.
    • Text warnings such as age restriction and notes about responsible consumption must be bold in a bright yellow box or stated audibly for oral communications.
    • No false or misleading statements suggesting products have curative or therapeutic effects.
    • Signage cannot be in the form of a billboard and cannot be within 500 feet of a school or playground.

Part 130—Cannabis Laboratory Testing.  The CCB voted unanimously to approve proposed cannabis laboratory testing regulations which include:

    • Establishing an application process that will allow the OCM to permit certain laboratories to test adult use cannabis and issue laboratory test reports as required by the Cannabis Law, including labs which have already been authorized NYS Department of Health for medical testing. Based on learning from other states, OCM is confident that authorizing medical testing labs will avoid lab shopping or “gaming of the system.”
    • Requiring any approved labs to independently collect test samples in order also to avoid lab shopping by licensees.
    • Requiring labs to have ISO 17025 accreditation.
    • Prohibiting cross-ownership between labs and other registrants or licensees under the Cannabis Law.

Finally, the CCB also approved additional resolutions, including:

    • Allowing two CCB members to hold separate public office.
    • Authorizing an additional 16 Adult-Use Conditional Cultivator License applications, which brings the total available licenses to 162.
    • Delegating authority to the Executive Director of OCM to engage with the State’s Division of Criminal Justice Services for the purpose of entering an agreement to conduct criminal history and background checks of individuals with applications before the CCB or OCM.

A video and transcript of the June 1 board meeting has been posted on the OCM’s website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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