The manufacturing of cannabis edibles and concentrates is set to become legalized on October 17, 2019, with proposed amendments being made to the Cannabis Act (the “Act”) and the Cannabis Regulations.
The proposed new rules will regulate all edibles – defined as all products containing cannabis that are intended to be consumed in the same manner as food or drink. The Proposed Regulations Amending the Cannabis Regulations (New Classes of Cannabis) (the “Proposed Regulations”) and the Proposed Order Amending Schedules 3 and 4 to the Cannabis Act provide some preliminary answers as to how edibles will be regulated this coming fall.
A federal processing license (either standard or micro) from Health Canada is required in order to manufacture edibles. Companies should be aware that, as a result of Health Canada’s recent changes to the licensing scheme, applicants hoping to obtain licenses will now have to have their processing sites constructed prior to submitting an application. While this will help alleviate some of the backlog in the application process, it will also require applicants to place a larger initial capital investment into their project.
As far as provincial licensing requirements, the Liquor and Cannabis Regulation Branch of British Columbia (the “LCRB”) has not yet established any requirements in respect to the sale or production of edibles. Once the proposed federal regulations are in force, the provincial government will establish its own regulations and guidelines. The LCRB suggests that this will likely occur later this year.
In addition to the federal and provincial licensing requirements, producers of edibles in British Columbia should be aware of applicable municipal zoning bylaws for where cannabis related processing can take place. At this time, the cities of North Vancouver and Port Coquitlam allow for cannabis processing facilities to operate in specified zones.
In terms of the types of edibles that will be allowed, the Proposed Regulations require that all edible cannabis products must be shelf-stable (i.e. not require refrigeration or freezing). Aside from the cannabis itself, only food and food additives may be used as ingredients in edibles, and the use of food additives would need to be in accordance with the limits prescribed for foods in the Food and Drug Regulations (the “Regulations”).
Furthermore, edibles cannot be fortified with vitamins or mineral nutrients, but may contain ingredients with naturally occurring caffeine (e.g. chocolate, tea, or coffee), provided that the total amount of caffeine in one package does not exceed 30 mg. Additionally, a small amount of ethyl alcohol will be permitted in edibles (not exceeding 0.5% w/w), if ethyl alcohol is present as a by-product in fermented ingredients, and in products such as vinegars.
The Proposed Regulations suggest that a limit of 10mg of tetrahydrocannabinol (“THC”) per discrete unit per package would be allowed. Additionally, smaller packaging size requirements would apply to any cannabis product that contains more than 3% THC by weight.
Packaging and Labels
The current maximum package size and public possession limit of 7.5 grams of cannabis will also apply to edibles. Plain packaging and labelling requirements that presently apply to all cannabis products– such as the standardized cannabis symbol, health warning messages, THC and cannabidiol (“CBD”) content and child resistant packing – will also apply to edible cannabis products.
Consistent with the Regulations, the following will also be required on the label of edible cannabis products, in addition to the current labelling requirements:
- list of ingredients;
- the common name of the cannabis product;
- an indication of the source of any allergen or gluten;
- a durable life date or “best before date”; and
- a cannabis specific nutrition facts table.
As required under the marketing rules of the Act, product packages and labels would be prohibited from making representations regarding any health benefit claims, nutrient content claims, cosmetic benefit claims, representations that associate a cannabis product with an alcoholic beverage, or the express or implied representation of edible cannabis as being a suitable means of meeting any dietary requirements of an individual. These prohibitions are consistent with the objective of the Act: to “protect young persons and others from inducements to use cannabis.”
Next Steps for Cannabis Producers and Sellers
Health Canada opened consultation on the Proposed Regulations between December 20, 2018, and February 20, 2019, which allowed members of the public to provide their comments and feedback. Health Canada is now reviewing the comments it received and anticipates that some changes may be made to the Proposed Regulations, though amendments would have to be made no later than October 17, 2019.
Producers and sellers of legal cannabis products will need to consider how these regulations will apply to their business practices to ensure compliance with the Proposed Regulations if (and to the extent that) they intend to participate in the business of producing, advertising and selling edibles. Our team of lawyers would be pleased to help.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.