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AHPA recently identified five 60-day notices of violation (NOVs) dated May 3-5, 2023 alleging California Proposition 65 (“Prop 65”) violations for failure to warn for exposure to delta-9-tetrahydrocannabinol (“delta-9 THC”), and in some cases, marijuana smoke and β-myrcene, in hemp and cannabis products. The NOVs primarily target smokable hemp products (flower, pre-roll, and vape), but also include a small number of products for topical and oral uses. Four of the five NOVs were filed by one private plaintiff, who also filed three NOVs related to hemp products in 2022.
Under Prop 65 regulations, a person who causes an exposure to a listed chemical must provide a “clear and reasonable warning,” unless otherwise exempted from the warning provisions. Cannabis (marijuana) smoke has been listed as a carcinogen under Prop 65 since June 19, 2009 and the listing of β-myrcene as a carcinogen became effective on March 27, 2015. A more recent addition to the list, delta-9 THC has been listed as a reproductive toxin since January 3, 2020. While delta-9 THC and β-myrcene are natural constituents of the cannabis plant, the intended use of the products targeted in the NOVs are unlikely to allow for application of the Prop 65 naturally occurring exemption for exposures associated with food products containing these listed chemicals.
In addition to the alleged Prop 65 violations, the issue of illegal sale of smokable hemps products is raised in several of the NOVs (from Notice 2023-01171):
“Furthermore, California Health and Safety Code Section 111921.6 prohibits the sale of smokable hemp products in the State of California, and the manufacture of products for sale within the State of California. Thus, by manufacturing smokable hemp products to be sold within California as well as by selling and shipping smokable hemp products to consumers in California, Violator is in violation of California Health and Safety Code Section 111921.6.”
Other alleged violations include the identification of smokable hemp products using names that include existing well-known non-hemp cannabis strain names. The private plaintiff alleges that using such names may lead a reasonable California consumer to assume that these products are from the regulated cannabis market, rather than being a smokable hemp product. The private plaintiff deems such action to be a deceptive marketing practice and results in unfair competition in violation of applicable California law.
The five alleged violators identified in the NOVs include both retailers based in California as well as some marketers selling hemp and cannabis products from other states via e-commerce websites. These recent actions highlight the fact that marketers of hemp products must be knowledgeable and compliant with the applicable regulations in each state in which its products may be sold or shipped to consumers. Prop 65 contains specific provisions for e-marketers to supply compliant warnings during online sales.
The defense of a lawsuit brought under California Proposition 65 is a complex process requiring special expertise. It is strongly advised that anyone in receipt of a 60-day notice of violation contact an attorney who is knowledgeable about this law. AHPA maintains communications with several legal firms who specialize in environmental and consumer product law and can provide introductions to interested parties. AHPA has published several freely available guidance documents regarding the application of Prop 65 to herbal products, both generally and to specific herbal product categories such as hemp and cannabis products, and teas and infusions.
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