NY cannabis regulators propose new rules for marketing, packaging and laboratory testing

By Sean Teehan | steehan@syracuse.com

New York’s Cannabis Control Board approved 16 new conditional cultivator licenses today, as well as draft regulations for testing labs and for the marketing and packaging of marijuana products.

Board members unanimously approved the new draft regulations, which will now go to a 60-day public comment period, after which Office of Cannabis Management staffers could alter requirements before putting up final regulations for board approval.

“These regulations were selected as the first sections for consideration, because they will help ensure that products are safe and tested with appropriate consumer protection labeling,” board Chair Tremaine Wright said.

Draft requirements for testing labs include rules that labs must be ISO 17025 accredited – a universal standard for testing and calibration laboratories – and use third-party firms to select samples that will be tested. The regime would also require a state reference lab, which would review and retest samples submitted by independent labs. The reference lab would either be contracted by OCM, or operated by the state Department of Health.

Proposed regulations on testing labs seem basically in line with other legal cannabis states, said Lev Spivak-Birndorf, chief science officer at Michigan-based cannabis testing company PSI Labs. Some parts of the draft rules address issues that have arisen in the mariuana testing industry like potency inflation, and weed companies lab-shopping for the results they want, he said.

Earlier this year, PSI Labs CEO Ben Rosman told NY Cannabis Insider that the issue of potency inflation at cannabis testing labs is probably the marijuana testing industry’s “worst-kept secret.”

Creating a state reference lab would enable the state to determine whether an independent lab is providing accurate results, Spivak-Birndorf said. If a lab appears to be releasing inaccurate results, a state reference lab could re-test samples, and determine the first lab’s accuracy.

The rules would also require a third-party firm to select the product sample that is tested, which could ensure greater accuracy, Spivak-Birndorf said. Some growers choose specific parts of a batch for testing in an effort to produce results higher in THC and lower in mold and contaminants. In theory, a third-party sampling firm would simply pick a sample for testing that’s representative of an entire batch.

“In some states, like Colorado, sampling is done by the growers themselves; and we think that’s a big oversight and mistake,” Spivak-Birndorf said. “There’s too much incentive to potentially deliver samples that may not show the contamination that is being screened for, or might not be representative of the potency.”

However, Spivak-Birndorf said OCM might want to rethink the possibility of limiting terpenes, which are naturally occurring chemical compounds in plants that can create aromas and flavors. Draft regulations say labs must test for whether “terpenoids” in products are consistent with the acceptable limits determined by OCM. Terpene levels have very little to do with a product’s safety, he said.

“That’s one of those tests where, while some states might say, ‘You have to test for it,’ it’s unclear what the public safety and health implications of that are,” Spivak-Birndorf said.

Draft rules for packaging and marketing include minimum standards, like requirements that all products are sold in child-proof containers. Packaging cannot include any pictures aside the company’s logo, and must include three state-approved symbols, list the product’s THC and CBD content, contact information for the manufacturer and distributor, and other information, draft regulations say.

The rules would also prevent weed companies from marketing their products using bright colors, bubble letters, cartoons or other elements that could appeal to people under 21. They also ban billboard ads, and advertising anywhere fewer than 90% of the audience is likely to be under 21.

Kaelan Castetter, founder of business consulting firm Castetter Cannabis Group and co-founder of the New York Cannabis Growers and Processors Association, said OCM’s draft rules on marketing and packaging are stricter than he expected. He questioned whether there’s enough space on some packages to include all the symbols and disclosures that would be required. Additionally, the rules would make it difficult for companies to create branding that makes their products stand out.

“Brands are not going to have a lot of creative freedom when designing their packaging if these regulations were to go on the books as is,” Castetter said.

Castetter also questioned the necessity of child-proof packaging for flower products. Eating raw cannabis flower doesn’t cause intoxication or poisoning, Castetter said, so child-proof packaging is redundant, because anyone who has the wherewithal to smoke flower would also be able to open child-proof packaging.

Aside from new draft regulations, the board also approved conditional cultivation licenses to 16 additional companies, bringing the total number of farms approved to start growing weed to 162.

Chris Alexander, OCM’s executive director, also announced that the comment period for proposed medical cannabis home grow regulations will be extended by 45 days due to a clerical error.

The board also voted to allow member Jen Metzger to serve on the Ulster County Land Bank Development Corporation while also holding a seat on the Cannabis Control Board, and for OCM staffer Erica Stupp to serve on the New York State Department of Health Institutional Review Board while working for OCM.