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Environment & Energy Report

Pot Smoke Potential Reproductive Toxin Under California Law

Nov. 22, 2019, 11:00 AM

Recreational marijuana has led California officials to take a look at whether pot smoke and the active ingredient in cannabis should be classified as reproductive toxics under the state’s Proposition 65 law.

California has listed marijuana smoke as a carcinogen under Prop. 65 since 2009. But a separate listing now as a reproductive toxin would escalate requirements for product warnings and could fuel lawsuits against retailers and dispensaries in the state’s nascent recreational pot businesses.

“You just expanded the list of potential plaintiffs,” said Nicole Howell Neubert, managing partner with Clark Neubert LLP in San Francisco, whose clients include companies in all parts of the cannabis supply chain.

If marijuana smoke is listed as both a carcinogen and reproductive toxin, cannabis companies that have already complied with Prop. 65 would have to revisit their warning and compliance practices, said Sarah Peterman Bell, an environmental lawyer and partner with Farella Braun + Martel LLP in San Francisco.

The warnings could be required for products from pot brownies to teas, and posted on labels, store shelves, buildings, or—in the case of online sales—on websites. Businesses with fewer than nine employees would be exempt.

California made the recreational use of marijuana legal in 2016, and last year began issuing licenses to grow, distribute, and sell pot.

California’s legal cannabis market is on track to grow 23% this year to $3.1 billion. Consumer spending is forecast to reach $7.2 billion in 2024, said a report from Arcview Market Research and BDS Analytics.

Dec. 11 Vote Expected

Proposition 65, adopted nearly 25 years ago with overwhelming voter support, requires the state to publish a list of all chemicals (now about 900) known to cause cancer, birth defects, or other reproductive harm.

The Office of Environmental Health Hazard Assessment (OEHHA) and an independent scientific review panel are considering adding cannabis smoke and delta-9-tetrahydrocannabinol (THC)—the primary psychoactive ingredient in marijuana—as chemicals that are toxic for reproduction.

The scientific review panel meets Dec. 11 and is expected to vote on the proposed new listing. If approved, it would take about a week for a notice to be posted, and the rules would kick in after a one-year grace period. During that time companies could reduce or eliminate the chemical in their products or prepare to provide warnings.

OEHHA during that year would try to set safe harbor levels for exposure. Products below the safe harbor level aren’t required to have warnings.

“Not just any exposure would have to require a warning,” OEHHA spokesman Sam Delson said. “It would have to be significant.”

‘Set Off Another Wave’

OEHHA doesn’t track or enforce the warnings requirement. State law allows for consumers, groups, certain city and district attorneys, and the state attorney general to file civil claims against retailers or manufacturers that don’t comply. Those cases can result in removing items from shelves, adding proper warnings, and fines.

“If one enforcer gets on a product, you’ll see others picked up. And of course naming a new chemical on the list would set off another wave” of litigation, said David R. Bush, a Sebastopol, Calif., attorney who represents consumers in Prop. 65 lawsuits.

Bush represents plaintiff Michael DiPirro who sued the privately held pot delivery service SpeedWeed for allegedly violating Prop. 65 for failing to provide public notice. His lawsuit, filed in October 2018, seeks penalties of $2,500 a day for each violation.

Between December 2014 and Nov. 13, the attorney general’s data showed, 118 violation notices related to marijuana smoke were filed with the state.

—With assistance from Emily C. Dooley.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

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