Regulating edibles presents challenge for lawmakers, industry

A twist on a Rice Krispies treat, made with smashed Fruity Pebbles, was on sale for $5 at the recent High Times SoCal Cannabis Cup festival.

It came sealed in a shiny silver wrapper. But the packaging was blank, with no indication of who made it. It also wasn’t clear what the ingredients were — or that it was infused with cannabis.

Still, the lack of information didn’t stop festival-goers from handing over their cash and heading off to experiment with their brightly colored treats.

This scenario has played out countless times – sometimes ending in pleasure and other times in misery – in the 20 years since California became the first state to legalize medical marijuana. The market has gone largely unregulated, with no requirement for edibles manufacturers to test or label their potentially potent products before selling them to serious medical patients and thinly veiled recreational enthusiasts.

Assorted cupcakes, each with 200 milligrams of THC, are displayed for sale in celebration of the 4/20 holiday at ShowGrow, a medical marijuana dispensary in downtown Los Angeles. (AP Photo/Richard Vogel)

Now that California is finally rolling out rules for both the medical marijuana and newly legal adult-use markets, regulators and industry professionals are confronting the unique challenges presented by the growing edibles market.

Regulators are looking to states such as Colorado and Washington that legalized recreational weed over the past few years to see how they’ve legislated cannabis-infused food. They hope they’re picking the best of those policies to help write California bills now making their way through the legislature and to draft regulations being circulated for public comment before they become law on Jan. 1.

Much of that 95-page rulebook is about business plans and public health, such as blocking companies from making edibles that have to be refrigerated. But many of the proposed rules are aimed at addressing the problems with overconsumption and accidental ingestion that Colorado regulators have been battling since early 2014.

Adapting to those rules will mean big changes for California’s entrenched edibles makers, who sold around $79 million worth of products in 2016, according to a study by the Humboldt Institute for Interdisciplinary Marijuana Research. And demand for edibles and other alternatives to smoking cannabis continues to grow, with a recent report from New Frontier Data showing sales of marijuana flower went from accounting for around 86 percent of the legal market in 2016 to roughly 64 percent in December.

“It’s a tough business, let me tell you,” said Robert Henning, cofounder of San Diego-based Dr. Robert’s Bakery. “You change, you get all updated and then you change it again.”

The Humboldt institute predicts all California cannabis manufacturers will have to spend an extra $39 million each year to comply with the coming regulations.

But after years of trying to regulate themselves as they’ve watched what other states were doing and tried to predict what was coming here, Julianna Carella, CEO of the 7-year-old Oakland edibles company Auntie Dolores, said they’re actually anxious to finally see California spell out the rules.

“We just want the regulations to be reasonable so that companies can actually comply,” she said.

PREVENTING OVERCONSUMPTION

One of the biggest challenges with edibles is the tendency for consumers – particularly inexperienced ones – to overindulge and end up miserable. That’s because edibles take more time to kick in, last hours longer and can produce a more intense high than smoking.

“You hear the same story over and over again,” said Andrew Freedman, who was Colorado’s first Director of Marijuana Coordination and now runs a Denver-based cannabis consulting firm.

Consumers have a bite of an edible, wait half an hour and decide it isn’t affecting them. So they have another bite of that infused candy bar or start drinking alcohol. But since it can take a couple hours to feel the full effect of edibles, they’ve suddenly had way too much.

The good news is that no one has ever died from having too much cannabis in any form. But people who’ve overindulged often vomit excessively and report feeling like their life is in danger. And there are rare stories of people committing suicide or harming someone else while under the influence of potent edibles.

“There is nothing long-term harmful about it,” Freedman said. “But you are a danger to yourself and people around you when you’re not in touch with reality.”

Dr. Raquel Keledjian, director of The Werc Shop’s cannabis testing lab in Monrovia, views samples of cannabis-infused brownies and cookies. The blondie contained mold, and another edible tested with a higher potency than the company had expected. (Photo by Cindy Yamanaka, Orange County Register/SCNG)

The unique way edibles work in the body is why every state that permits recreational marijuana sales limits the amount of THC that can be in them, even though flowers have no limit and concentrates can be much more potent.

The draft of medical marijuana regulations recently released by the California Department of Public Health calls for a THC limit of 10 milligrams per serving of any edible, using the level that’s become the standard serving size. The rules also would limit an entire package of edibles to no more than 100 milligrams.

“Other delivery options with higher THC concentrations, that are less attractive to minors, are available to consumers desiring the effects of that higher THC concentration,” public health officials wrote in an explanation that accompanies the draft regulations, with regulators noting up to 1,000 mg are allowed in concentrates.

“Limiting the THC concentration for an edible cannabis product protects children and reduces the risk of accidental overdose and injury while balancing consumer needs.”

Edibles manufacturers largely anticipated those THC limits on recreational cannabis and called them reasonable. But many were hoping California would go the route of Oregon and not limit the amount of THC in medical cannabis products, since some patients with serious conditions and high tolerance need much more than 100 mg of cannabis each day to treat their conditions.

“I think patients will have a little uproar over this,” Henning said.

Dr. Robert’s Bakery in San Diego makes eight different products that currently range from 100 to 900 mg each. They can scale that back, Henning said, but patients needing more than 100 mg would have to eat more — and spend more — to medicate with edibles.

Stakeholders have until June 12 to offer feedback on the proposed regulations, with hearings for manufacturers on June 8 in Santa Rosa and June 13 in San Diego. So Henning is hoping they might be able to sway state officials on this point.

But companies that haven’t been dividing edibles into small doses, testing them and packaging them accordingly – such as the one that sold that Fruity Pebbles square at Cannabis Cup – undoubtedly have some complex and pricey changes to make to their operations over the next six months if they want to become legally licensed manufacturers.

PROTECTING KIDS

Helping adults be smart about their own cannabis consumption is one thing. But it takes a whole other set of rules to keep kids and pets from accidentally ingesting infused candies, cookies and other products.

Nearly twice as many children under 9 years old were taken to Children’s Hospital Colorado for marijuana ingestion in the two years after recreational cannabis sales began than in the years before that market opened, according to a 2016 report in the medical journal JAMA pediatrics. And that study found calls to poison control centers for children consuming weed spiked to five times what they had been.

Veterinarians also have cautioned about a spike in people bringing pets in for treatment after they’ve eaten marijuana products, with the Pet Poison Helpline reporting a 330 percent increase in cannabis-related calls – mostly for dogs who have eaten edibles.

“Public education campaigns are very important here,” Freedman said, with Colorado running ads that inform consumers of these risks and encourage them to keep marijuana products locked away.

California’s Prop. 64 dedicates marijuana tax revenues to youth-focused public education campaigns. And a bill pending in the legislature would require the state to create an online cannabis consumer guide by July 1, 2018.

Another key, Freedman said, is ensuring that all cannabis products are produced, marketed, labeled and packaged in a way that’s not geared toward kids.

Those rules are particularly important for edibles, which the JAMA study found are responsible for roughly half of all accidents with kids.

Changing that statistic means big changes for the industry, where one of the most popular edibles has long been fun treats such as gummy candies.

Prop. 64 and California’s new medical marijuana laws ban all cannabis products that might appeal to children. A bill now making its way through the California legislature further defines that, echoing a Colorado policy by outlawing all edibles that look like a person, animal, insect, fruit or a candy that’s already on the market.

“We encouraged them to stay much more toward the Godiva end of the spectrum,” Freedman said, with many edibles companies shunning use of the word candy altogether.

California regulations also say that packaging for cannabis products can’t appeal to anyone under 21. Draft rules specifically ban packages with cartoons or likeness to any existing kid-friendly characters or brands, with regulators hoping to avoid sending the message that cannabis is safe or socially acceptable for young people.

Dr. Robert’s Bakery voluntarily changed its packaging in anticipation of those regulations coming to California. They originally had cartoons on their products in keeping with the company’s cosmic theme. They ditched those in favor of simple designs, which Henning is learning to embrace. And he continues to order his packaging in small batches, even though that’s less cost effective, in case the rules change again.

Draft regulations require edibles to come in child-resistant packaging that’s see-through for edibles. And if that package has more than one serving size inside, it has to be resealable.

All cannabis products legally sold in California will soon need this symbol stamped on their packaging, according to draft rules from state regulators. (Courtesy of Department of Pubic Health)

The rules also state that edibles products must have the words “cannabis infused” and a universal symbol for cannabis products – a big red triangle labeled “THC!” – on their packaging, which can help young people and non-English speakers know what’s inside. And they must have “KEEP OUT OF REACH OF CHILDREN AND ANIMALS” and other safety warnings in bold print.

Manufacturers were relieved to see that California isn’t calling for actually stamping “THC” on the foods themselves, which Colorado started requiring last fall.

Carella said that would have put many companies out of business, given the price of equipment that would be needed and the inability to stamp many edibles that companies are known for, such as Auntie Dolores pretzels.

“That’s where we would draw the line between reasonable and unreasonable regulation,” she said.

Edibles makers were also glad to see that California’s regulations don’t call for individually wrapping each 10-milligram serving, as Washington is requiring.

“That’s a horrible assault to the environment,” Carella said. “You’re producing 10 times more plastic.”

Reasonable regulations are important, she said. But at some point, Carella said adults have to take responsibility for their own consumption and for keeping cannabis products out of reach of kids and pets.

Some days, Henning jokes that he should jump back into the mainstream restaurant business. Or open a packaging company so he could profit from the ever-changing rules.

“There are so many hoops we have to jump through,” he said – more, he argues, than what companies who make alcohol or tobacco products have to face.

But he’s passionate about making infused food. And he said, “We’re positioned to do what we have to do.”