CBD Product Alert: California Prop 65 Enforcement of New THC Listing to Commence January 3, 2021

While many of us are grateful to see 2020 come to a close, cannabidiol (CBD) product manufacturers will face a new challenge in 2021: compliance with California’s Proposition 65. As of January 3, the one-year grace period to come into compliance with new Proposition 65 warning requirements for THC ends -- and enforcement may begin.

By that date, businesses that may expose consumers to THC must determine if warnings are required for their products and, if so, post a proper warning (such as on a product label, website page, and/or shelf sign, among other options). As discussed in my post when the new listing was issued, on January 3, 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized the listing of delta-9-tetrahydrocannabinol (THC) as a reproductive toxin.

Under federal law, CBD may contain up to 0.3% THC by weight. Accordingly, a wide range of CBD products, including oils, topical applications, edibles, beverages, and vapes, among others, may require a new Prop 65 warning if they contain detectable levels of THC. Given that OEHHA has not yet established a safe harbor” level for THC, the burden falls on businesses to determine if exposure to THC from the product will pose a significant risk of reproductive harm. That technical assessment requires, first, calculation of the daily exposure level from normal use of the product; and, second, a comparison of that exposure level to the safe” level determined by conducting an independent evaluation of the scientific literature following the requirements of the Prop 65 regulations.

CBD products provide Prop 65 plaintiff groups with an array of new targets, and aggressive enforcement is expected as soon as the January 3, 2021, compliance deadline passes.