Weed Wrapped Up: Massachusetts Updates Labeling, Packaging, and Advertising Regulations

The Massachusetts Cannabis Control Commission (CCC)’s new regulations for adult-use and medical-use are to be effective on January 8, 2021.

The new final regulations’ simplified language in the Advertising, Labeling, and Packaging sections clarified the permitted and prohibited practices under these categories and implemented a pre-approval process.

We encourage marijuana businesses to seek guidance from a trusted attorney regarding these final regulations and the potential impacts on your business or operations.

Pre-Approval Process for Packaging & Labeling

In addition to complying with the Advertising, Labeling, and Packaging regulatory requirements set forth 935 CMR 500.104 (4)-(6), the CCC must pre-approve a package or label.  An application for pre-approval may be submitted at any time but should be submitted prior to sales or before implementing a substantive change to an already approved package or label. The pre-approval application fee is $50 per product.

The CCC may determine the form and manner for a pre-approval application, but, in addition to such application, applicants will also need to submit images of the proposed package or label to the CCC as an electronic file. Packaging applicants should submit front and back photographs of the packaging and labeling applicants should submit one photograph of each label. All submitted photographs should have the package or label against a white background, be in JPEG format, and satisfy the minimum photo and print resolution requirements detailed in 935 CMR 500.104 (7)(b)(1)-(2).

The CCC will review the physical attributes and the statutory warnings of a label or package from submitted photographs. In some circumstances, the CCC may follow up with a written or electronic request to view a package or label in-person or via video conference.

Labeling

Massachusetts’s had laid the framework for product labeling in past regulations. These final regulations clarify and improve upon the framework by adding a fifth category to labeling regulations for Repackaged Marijuana. The five labeling categories are as follows for: (1) Marijuana Not Sold as Marijuana Product; (2) Edibles; (3) Marijuana Concentrates and Extracts; (4) Marijuana-Infused Tinctures and Topical; and (5) Labeling of Repackaged Marijuana.

Below, please find a brief summary of some of the key updates in the final regulations regarding labels:

For the Labeling of Marijuana Not Sold as a Marijuana Product

  • Labels should express the total net weight or volume in both US customary units and metric units (in that order) on the product
  • Labels should include the number of servings in the product and serving size by indicating the specific weight in milligrams for each serving.
  • The requirements are applicable to marijuana packaged as final product for wholesale to a consumer delivery operator, provided that marijuana cultivator, microbusiness, or craft marijuana cooperative are responsible for complying with regulatory labeling requirements for the marijuana products that are wholesaled for delivery for consumer use.
  • The labeling of white-labeled products for delivery can be done by either marijuana cultivator, microbusiness, or craft marijuana cooperative or delivery operator, as long the white labeling is expressly authorized by the CCC, permissible under the delivery operator’s license, and reflected in any wholesale agreement.
  • The requirements do not apply to the transportation of wholesale cultivated marijuana in compliance with the Inventory and Transfer section of the final regulations. However, the marijuana retailer is responsible for complying with all regulatory labeling requirements for marijuana products sold to consumers.

For the Labels of Edibles:

  • Labels should express the total net weight or volume in both US customary units and metric units (in that order) on the product
  • Labels should include the number of servings in the product and serving size by indicating the specific weight in milligrams for each serving.
  • The allowance of White Labeling (as defined in the regulation) “of Edibles to be sold and delivered by Delivery Operator may be conducted by the licensed Microbusiness or Product Manufacturer of the Edible at the Microbusiness’s or Product Manufacturer’s Premises or by the Delivery Operator at the Warehouse of the Deliver Licensee, provided that the while labeling is explicitly authorized by the Commission under the specific Delivery Operator License and reflected in any Wholesale Agreement.”
  • There is no longer a requirement for “the quantity of Usable Marijuana contained within the product as measured in ounces” on the label.

For the Labels of Marijuana Concentrates and Extracts:

  • Labels should express the total net weight or volume in both US customary units and metric units (in that order) on the product
  • Labels should include the number of servings in the product and serving size by indicating the specific weight in milligrams for each serving.
  • For Marijuana Vapor Devices, labels should:
    • Include an identification of specific additives that includes but is not limited to the additives found in the “FDA’s Inactive Ingredient Database for “Respiratory (inhalation) “ or “Oral” routes of administration based on dosage an aerosol product or inhalant.”
    • Include the statement “This product was produced using only cannabis-derived terpenes,” if applicable.
    • Include the statement “This product was produced from sources other than cannabis,” if applicable.

For the Labels of Marijuana Tinctures and Topicals:

  • Labels should express the total net weight or volume in both US customary units and metric units (in that order) on the product
  • Labels should include the number of servings in the product and serving size by indicating the specific weight in milligrams for each serving.

For the Labels of Repackaged Marijuana:

The final regulations set forth a new labeling requirements category titled “Labeling of Repackaged Marijuana,” found at 935 CMR 500.105(5). “Repackaging,” as defined in the regulations, means “to uniformly wrap or seal Marijuana that has already been wrapped or sealed into a ready-made product for retail sale, without combining, infusing or changing the chemical composition of the marijuana.”

The Repackaged Marijuana label should include the following in addition to other information that may be required: the marijuana producer’s name and registration number; the business and trade name of the packager, if different than the producer;  harvest date; type or strain of marijuana;  the full cannabinoid profile of the repackaged marijuana including the amount of ∆9-THC;  net weight expressed in US customary and metric units; any identifying coded or numbers associated with the manufacturing and processing;  seals, statements, symbols or marks set forth  in 935 CMR 500.105(5)(e)(1)(i)-(k)

If it’s not unreasonable or impracticable, the marijuana establishment may either include labeling on a peel-back style label or attach or insert a label on the takeaway bag containing the product.

Packaging

Marijuana or marijuana products packages for sale or delivery to consumers must be in child-resistant packaging. Packages should be plain and opaque and should not contain any attributes that may be appealing to minors.  Packages should also be resealable if they contain more than one serving, which is limited to no more than 5 milligrams of ∆9-THC per individual serving.

Advertising

The final regulations streamlined the “Marketing and Advertising Requirements” section by heading it as only “Advertising Requirements.” Advertising is a defined term in the regulations, and branding has been defined under Brand Name, with related activities defined under Brand Name Sponsorship. This slight modification of terms in this section provides greater clarity to the scope of coverage in this section.

The following is a summary of the key developments in the Advertising section of the final regulations.

  • The final regulations replace the generic term of branding , with the defined term “Brand Name”
  • The final regulations condense Marketing and Advertising, to the defined term “Advertising”
  • The Advertising section sets forth regulations for Brand Name Sponsorship, which allows for the sponsorship of a charitable, sports, or similar event, as long as such advertising is limited to the Brand Name. Any advertising in connection with such event must be geared towards those expected to be age 21 or older, and reasonable measures should be taken to prevent advertising from reaching underage persons, as determinable by current audience composition data. The marijuana establishment should retain documents related to the audience composition data for a period of one year or another period of time set by CCC, a court or government agency.
  • Where the Brand Name Sponsorship event is held and organized by the city/town where the brand marijuana establishment is licensed to conduct business, the following conditions must be met: (a) sponsorship of the event should be in a submitted Positive Impact Plan; (b) sponsorship and advertising are limited only to the Brand Name; (c) any advertising in connection with such event must be geared towards those expected to be age 21 or older, and reasonable measures should be taken to prevent advertising from reaching underage persons, as determinable by current audience composition data.
  • A marijuana establishment may utilize employee discounts in accordance with 935 CMR 500.104(4)(a)(9)

Below, please find a high-level summary of the “Forbidden 18” or rather a non-comprehensive list of the types of activities prohibited under the adult-use marijuana regulations:

  • Disseminating false, fraudulent, or misleading advertising (directly or by omission or by ambiguity).
  • Engaging in print, electronic communications or media advertising, unless it is reasonable expected that at least 85% of the audience is over the age of 21, as determined by composition data.
  • Portraying or representing someone under the age of 21 in advertising that uses statements, designs, or images.
  • Containing celebrities’ endorsements, cartoons, or mascots that could appeal to someone under the age of 21.
  • Promoting a brand sponsorship which includes but is not limited to celebrity endorsements, mascots, and cartoons that could appeal to someone under the age of 21.
  • Claims by a licensee that its products are safe and/or have healing or therapy benefits unless such claims are substantially backed by science or evidence, as such will be determined by the CCC.
  • Illuminating signs and using outdoor signage for a period other than 30 minutes before sundown to closing, subject to the CCC’s specifying other requirements in the future.
  • Violating state and local ordinances and requirements for advertising that appears on billboards or public signs.
  • Using loudspeakers or the radio in vehicles or in a marijuana establishment for advertising or promotions of marijuana or marijuana products.
  • Sponsoring a charitable, sporting event or similar event with the brand name, where advertising is not targeted at participants reasonably expected to be over the age of 21 and reasonable safeguards have not been implemented to avoid advertising or targeting those under 21 years old.
  • Containing improper or objectionable in nature such as by disparaging a certain group or containing offensive materials in the advertising or brand name.
  • Promoting the business’s branded merchandise, such as cups and t-shirts by advertising marijuana or marijuana products on such items.
  • Operating a website that does not verify entrants are over the age of 21.
  • Displaying marijuana or marijuana products so such is visible from outside the establishment.
  • Appearing on or in private or public vehicles, transportation venues, such as bus stops or airports.
  • Displaying of exterior signage or materials that advertise a particular brand or marijuana product or variety of marijuana on a licensed premise.
  • Advertising the price of marijuana in any way other than permitted by the regulations in 935 CMR 500 104(4)(a)(6).
  • Marketing of free promotional items such as loyalty programs and giveaways amongst other activities and items is not allowed, except as permitted in 935 CMR 500.104(4)(a)(9) or take-away bags bearing the Brand Name for purchased products.