Fear, Loathing, And Space Cakes: How Should States Regulate Marijuana Edibles?

Let cannabis entrepreneurs show how responsible they can be before strapping their products and their bottom lines with even more red tape.

In many respects, Colorado is leading all cannabis states into the 21st century of cannabis regulation. On a seemingly monthly basis, Colorado confronts first impression cannabis issues with which other states have yet to grapple. One of those emerging issues is how to regulate edibles and marijuana-infused products. Washington and other states are really just beginning to visit this topic, but Colorado already has a deep love/hate, “we get it”/”we have no idea” relationship with regulations for infused marijuana products. Essentially, edibles are turning out to be somewhat of a headache for a marijuana industry lacking science and data to establish an ideal line between the perfect dose and the bad trip.

Ultimately, edibles and infused products create charged emotions due to both real and perceived issues involving potency, quality control, youth appeal, and youth access.

Maureen Dowd’s now infamous New York Times piece about her rabid “overdose” on marijuana-infused chocolate undoubtedly greased the wheels of anxiety and paranoia for marijuana regulators in Colorado.

But since the Dowd piece, the debate over how to treat marijuana edibles and infused products has gotten more heated for reasons other than bad press. Accidental ingestion by anyone, but especially by kids, is Colorado’s (and every other state’s) biggest concern with edibles. How to “package, color, and stamp” cannabis to prevent over-consumption or unintended ingestion is a big issue for regulators, and though no one solution has revealed itself, most agree that edibles education makes sense. Most also agree that edibles and infused products should be in child-resistant packaging.

Despite all of the rhetoric surrounding the edibles issue, Colorado does not yet have any good data on the effectiveness of its existing edibles regulations. There is little to no evidence of high rates of accidental consumption or over-consumption, child poisonings, or even cases of discomfort — Maureen Dowd excluded, of course. The same thing can be said for Washington State at this point. Though Washington has added regulations covering edibles and infused products, there have been no confirmed reports of over-consumption or accidental consumption due to faulty labeling or packaging.

Though I have no doubt that there will be cannabis product liability cases involving the adequacy of packaging and labeling, state regulations so far seem to be doing their intended job of keeping the public safe in both recreational states. I am also seeing extensive self-regulation out there by cannabis businesses interested in avoiding problems. Many of our clients undergo regular audits to confirm that they are complying with both state and local packaging and labeling laws and with industry best practices.

So, my message to Colorado (and to Washington and other states looking in) is to give current regulations a chance before piling on even more. Let cannabis entrepreneurs show how responsible they can be before strapping their products and their bottom lines with even more red tape.

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P.S. If you’re interested in starting a marijuana law practice — or if you’d like to learn about the steps it will take to open a dispensary legally in your state — please attend Above the Law’s Marijuana Law event this summer in Denver, Colorado, where I’ll be a panelist. I look forward to seeing you there and helping you learn the ins and outs of this complicated and rewarding practice area.


Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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