New Regulations Shake Up Colorado Edibles Industry

A new raft of regulations recently approved by Colorado State Attorney General Cynthia Coffman requires edibles manufacturers to retool their production processes yet again.

Emergency rules passed in August of 2014 intended to reduce the risk of accidental ingestion mandated child-resistant, F-1 grade pharmaceutical packaging for cannabis-infused foods, along with new limits on dosage and serving size. All edibles sold in Colorado retail stores are now cut into pieces containing only 10 milligrams of THC each, with only 100 mg allowed per package.

One section of the emergency rules required edibles makers to “shape, stamp or otherwise mark products—when practicable” to be identifiable as containing cannabis outside of their packaging, but this requirement was postponed to allow the House Bill 1366 workgroup to develop a universal symbol and discuss how the new regulation would be implemented.

Now, the Colorado Marijuana Enforcement Division has revealed the universal symbol: a diamond shape containing the letters THC along with an exclamation point.

This THC warning must be applied to cannabis-infused foods by using expensive custom molds, stencils, airbrushing or frosting. For bulk products like granola, or drinks that are impracticable to stamp or mark, manufacturers are limited to just 10 milligrams of THC per package, a decision that “effectively bans many more potent marijuana-infused drinks currently on the recreational market,” according to Channel 9 News.

Along with HB 1366, House Bill 1361 makes further changes to the law, limiting the amount of edibles that customers can purchase in a single transaction.

Colorado residents are allowed 80 servings, but out-of-state visitors can only purchase 20 servings of THC. With a serving size determined to be 10 mg of THC, that means a Colorado resident could buy eight 100 mg chocolate bars, with tourists restricted to two 100 mg chocolate bars.

Cannabis-infused food manufacturers are less than pleased with the new rules—especially since they agree that the earlier emergency rules have been effective at solving problems with over-consumption and accidental ingestion.

Jaime Lewis, CEO of Mountain Medicine and chairperson of the Cannabis Business Alliance, says the new legislation is unnecessary and motivated by fearmongering around the misuse of products.

“We are a very responsible industry with strict packaging requirements that work really well,” Lewis explained, adding that no data exists regarding the effectiveness of the emergency rules that were passed less than a year ago. “We didn’t have time to see if it’s working, and they’re not looking at the facts of what we need to prevent.”

Data obtained from Rocky Mountain Poison Center and Denver Health shows a slight increase in accidental ingestion by children under five years old, with 33 cases reported so far in 2015, compared to 29 cases in 2014. However, unintentional exposure to edibles amongst people of all ages decreased in 2015, with only 160 cases reported currently, compared to 180 cases in 2014.

Data provided by Rocky Mountain Poison Center and Denver Health

Methods of collecting data related to accidental ingestion can be misleading, because there’s currently no way to know whether the edible in question was purchased from a licensed producer, bought off Craigslist from a black market baker or made at home.

“Grouping everything together—black market products and regulated products—in any type of data is doing a disservice to the industry and the public,” explained Tyler Henson, president of the Colorado Cannabis Chamber of Commerce, a lobbying group for the industry. “The state hasn’t created a way to track that type of data.”

Bob Eschino, president of Medically Correct, the parent company of Incredibles, is also frustrated by the lack of reliable data associated with pediatric accidental ingestion, writing that 33 cases is “a pretty good success rate compared to the number of products sold.”

With many millions of edibles being sold each year in the state, the number of calls to Rocky Mountain Poison Control concerning marijuana-infused foods is markedly less when compared to other products, such as pharmaceuticals, cosmetics and household cleaning products.

Eschino should know—Incredibles has grown into one of the largest and most successful infused foods businesses, producing more than 40,000 candy bars per month. Dealing mostly in chocolate makes it easier to stamp or mark when compared with baked goods, but the costs of doing so are enormous.

“We have $70,000 worth of new molds on order right now that are being manufactured, and then they came out with this new ruling,” Eschino said. “Eventually we’re going to have to retool everything here in Colorado.”

For bakers, redesigning products to comply with the THC stamp will be much more difficult.

Julie Berliner, founder of Sweet Grass Kitchen, is known for her miniature pumpkin pies, cookies and brownies.

“Baked goods are porous,” Berliner explained. “It’s unreasonable to think that I can stamp my products like chocolate.”

To stay in business, Berliner will be forced to comply, and she is considering all options to spray, mark or stamp her baked goods. If popular items must be discontinued, or if desirable products become costly, she fears that customers will turn to the black market to satisfy their stoner sweet tooth.

“We keep things reasonable as far as price goes, and when it gets too expensive, people will go to the black market,” she said.

At Mountain Medicine, Jaime Lewis faces a similar dilemma with her award-winning baked goods and beverages.

“Marking and stamping certain products is really difficult, so I will have to reevaluate my entire product line,” Lewis said, including liquid items about to be released. “My whole new line of coffee, almond and soy milk beverages may not be viable to keep in production.”

Tim McDowell at MarQaha has focused exclusively on liquid-based products for the past six years, but he’s not worried about being regulated out of business. In fact, McDowell feels there’s a silver lining of sorts in the midst of all the new rules.

“They define sublingual products for the first time,” McDowell said, which will allow MarQaha to distinguish their tincture product lines from other types of edibles. But their Cannabis Cup award-winning Sativa Lemonade won’t remain viable in its current form. “We will discontinue those recreational 12 ounce beverages… on the medical side, we will still do them for now.”

MarQaha is preparing to diversify their offerings with new product lines coming in 2016, and McDowell predicts that many businesses will saturate the market with easily stamped products like gummies, hard candies and chocolate. Still, he views the obligatory THC stamp as unnecessary.

“We have science-based and packaging-based metered dosing that was working… but the idea that it wasn’t working until we put a diamond that says ‘THC’ on it—I disagree with that,” he said.

The Colorado edibles industry is preparing to seek relief during next spring’s legislative session, when industry groups such as the Cannabis Chamber of Commerce and Infused Product Advisory Council will challenge some of the new regulations as unconstitutional.

In particular, Eschino thinks that HB 1361, the so-called “equivalency” rule, is an example of the legislative overreach.

“Forty-eight 100 mg edibles would be equivalent to one ounce of flower, and they arbitrarily made it eight [100 mg edibles].” Eschino said. “Forty percent of our recreational adult-use market consists of tourists, who are now limited to only buying two edibles. We think that’s ridiculous.”

While the Colorado legislature forces cannabis infused-food businesses to jump through hoops, nothing in these new regulations affects homemade edibles. If preventing accidental ingestion or over-consumption of edibles was truly the goal of these new regulations, then erecting burdensome obstacles to lab-tested, licensed producers while allowing unlabeled, untested, unpackaged edibles to proliferate seems counterproductive.

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