Washington Bans Cannabis Candy?

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On October 2, 2018, the Washington State Liquor and Cannabis Board (WSLCB) held their regularly-scheduled board meeting where they dropped a bombshell: due to concerns over some products being too appealing to children, the WSLCB was issuing a new policy on edibles and a large quantity of marijuana infused edibles that had already been approved for production would no longer be approved.

The WSLCB stated that essentially all candies would be disqualified, including hard candy and tarts, fruit chews, jellies, and all other gummy-type products. Beverages, baked goods, capsules, chips and crackers, sauces and spices, and tinctures continue to be allowed to be sold. Chocolate, cookies, caramels, and mints are allowed only if in their original color (and not coated with any color), along with chocolate in the shape of a bar or ball, but with no shape or design “especially appealing to children.”

When this new policy is implemented––it will be a part of rules changes effective January 1, 2019—processors will be directed to immediately cease production of disqualified edibles. Retailers will be permitted to sell through their existing inventory until April 3, 2019, at which point all disqualified edibles must be destroyed.

The WSLCB cited their concerns and those brought by stakeholders and the general public regarding these products and their claimed appeal to children. The WSLCB stated that they would hold a webinar on October 16 where they would host questions from the community, though this was later postponed.

WSLCB’s New Policy Slows Down –– Second Thoughts?

The week after that initial board meeting, the WSLCB posted two press releases on their website in an attempt to clarify their intent. The first post appeared defensive, stating, “The agency is not banning all marijuana infused edibles. There will still be products available for consumers in the retail outlets.” The second stated that their regular edible review would be paused for 30 days while they entertained alternatives provided by the three major trade groups in the state: the Cannabis Alliance, the Washington Cannabusiness Association, and the Cannabis Organization of Retail Establishments. The WSLCB again cited concerns over products that are “especially appealing to children.”

The WSLCB’s announcement was met with outcry from stakeholders. Bob Ramstad, owner of cannabis store Oz, was quoted in the Seattle Times calling the ban of previously approved products “shocking …Their interpretation of ‘exceedingly attractive to children’ is ridiculous.” Logan Bowers, owner of cannabis store Hashtag Cannabis said in the same article, “I’m concerned that whole categories of products are being tossed out categorically. I don’t see how a chew is inherently more enticing to a child than a cookie. Children love cookies.” Children love soda, chocolate, and brownies as well, and they don’t need bright coloring or candy to know they want to eat something. That candy is banned but baked goods are not is simply baffling.

It would be surprising, but possible, to see the WSLCB completely reverse course. There had not been significant community input on this issue leading up to the announcement and, with enough input and pushback, a more sensible policy could be enacted.

How Do Other States Address This?

Oregon continues to allow the sales of marijuana edibles, including candies both hard and soft. Much like Washington, Oregon’s administrative code has language that disallows processors from processing or selling products that “by its shape, design or flavor is likely to appeal to minors”, which includes products “modeled after non-cannabis products primarily consumed by and marketed to children.” Candies, like cookies, brownies, and sodas, continue to be allowed to be sold in Oregon.

Still, in the process of implementing its system, California has similar regulations disallowing products that are––either by their marketing, packaging, or the product itself––are “attractive to children.” Much like Oregon and Washington, this includes the use of cartoons, imitation of commercially available non-cannabis candy, and products with the shape of a human being, animal, insect, or fruit. There is still no indication that all cannabis candies will be banned there.

All three states have rules that limit the dosage of each product, restricting how potent these products can be. And all three states have rules requiring these products be in child-resistant packaging.

Compare these products and rules to alcohol for a minute: there are all kinds of fruit-flavored spirits out there, even bubblegum-flavored vodka, and none of these products are in child-resistant packaging. And of course, unlike cannabis, overdosing on alcohol can actually kill someone. Again, it doesn’t take an expert to realize that children are just as attracted to cookies and brownies as they are candy.

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What Can Businesses Do?

So what is a cannabis company to do? The retailers have an easier time than the manufacturers––the WSLCB has allowed retailers to sell through April 3, 2019, though retailers should be cognizant that product returns would be more complicated here and would have to be properly destroyed after that date. Cannabis processors will also be allowed to sell remaining products until that date, but they are directed to cease production of these products starting January 1, 2019.

If you manufacture edibles, reexamine your products and see if they will qualify under the new rules. If the WSLCB has notified you that your products are no longer allowed, take that seriously, but also consider if there’s room to push back if your product isn’t clearly non-compliant. If you’re unsure or are wondering what else you can do, consult your attorney.

And lastly, get involved. Join one of the major trade groups and work with the WSLCB to see if they can loosen these new restrictions or potentially do away with them all together. The participation of individuals and companies makes a real impact on policy.