New York State's Marketing, Labeling and Packaging Proposed Regulations

July 27, 2022

New York State has released their draft regulations for packaging, labeling, marketing, and advertising cannabis in New York. The state’s main concern is making sure that minors (individuals under 21) are not targeted with marketing materials and that the labeling clearly states that it is illegal for minors to purchase and consume cannabis.

LABELING

Section 128.1(b)(4) of the proposed prohibits similarities to products, or words that refer to products, that are commonly associated with or marketed to be attractive to underage individuals, including any imitation of food, candy, soda, drinks, cookies, or cereal. Further, the words "candy" and "candies," as well as any spelling variants are prohibited. Additionally, (b)(6) prohibits the use of symbols, images, characters, public figures, phrases, toys or games that are commonly used to market products to minors.

Labeling Minimum Standards

The proposed regulations detail the minimum requirements for labeling cannabis products.

Pursuant to the proposed regulations the licensee must display the following in (at least 6-point size) black font on a white background:

* Milligrams (mg) per serving of total THC, total CBD, and any other marketed phytocannabinoids or terpene profiles;

* Milligrams (mg) per package of total THC;

* Amount of total THC and any other marketed phytocannabinoids as a percentage of volume, with the exception of edibles (edibles and other extracts have their own regulatory structure)

* Number of servings in total, with the exception of flower and forms of cannabis for vaporization;

* Weight of cannabis product; and

* Lot number.

MARKETING AND ADVERTISEMENTS

Audience Threshold

The proposed regulations prohibit a cannabis licensee to advertise on social media, TV, print, etc., unless "the licensee has reliable evidence that at least 90%, unless otherwise determined by the [OCM], of the audience is reasonably expected to be 21 or older." This threshold of 90% of the advertising audience being 21 or older also applies to a licensee who wishes to sponsor or advertise at a "charitable, sports, or similar event." For digital and virtual publications, it will be easy to restrict minors from viewing the advertisements by requiring the individual to certify that they are over the age of 21 (e.g., Click here if over 21). For other mediums this may be difficult, because the licensee has virtually no control over who may view the content (i.e., television advertisements). Nevertheless, in contemplating your business’s marketing plan, it is essential to carefully tailor your advertisements to the allowable audience. At Hrbek Kunstler Law we can work with you to make sure your promotion is in compliance with MRTA. Failure to strictly adhere to these regulations could result in the termination of the licensee’s ability to be in the cannabis business in New York.

Prohibited promotions and advertisements

Licensees are prohibited from advertising using free giveaways or promotional items such as T-shirts, nor are they allowed to advertise discounts, points-based reward systems, customer loyalty programs, coupons, or "free"/"donated" cannabis products. Further, cannabis advertisements are prohibited on signs in stadiums, arenas, shopping malls, video game arcades, and fairs that receive state funds. Billboard advertising is not allowed. Retail dispensaries may not use neon signs or any other lighting that is excessively bright or colorful. The aim is to prevent a licensee’s business from attracting minors. In that same vein, no marketing or advertising of cannabis products will be allowed within 500 feet of a school, playground, recreation center, childcare facility, public park, or library.

PACKAGING

Minimum requirements

The proposed regulations detail minimum standards for cannabis packaging. The packaging must be child-resistant, tamper-evident (e.g., prescription bottle), fully enclose the produce, minimize oxygen exposure, prevent contamination and/or degradation of the cannabis product, and not impart toxins or deleterious substances onto the product. The licensee shall also maintain a copy of the certificate showing that each package complies with the applicable requirements.

Packaging prohibitions

A licensee’s packaging is prohibited from having pictures, images, or graphics beyond the required minimum requirements. The package cannot have features that emit scent or sound or features that change the appearance of a package through technology. In accordance with the other proposed regulations, packaging is prohibited from having features that are attractive to individuals under the age of 21. Lastly, the package must contain at least 25% post-consumer recycle content.

Exit package

There are very few restrictions on the “exit package” that is provided to the consumer. That is, the bag or carry-out materials from the licensee’s business. The OCM simply wants to make sure that the exit package is not attractive to minors. The limiting of package graphics will make it difficult to differentiate a licensee’s business in the marketplace. Thus, it is important to carefully tailor your exit package to not only distinguish yourself in the marketplace but remain in compliance with the OCM.