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Proposition 65 Notices Target Cannabis

In a single week this month, a new Proposition 65 plaintiff, Michael Murphy, has issued almost 700 Proposition 65 Notices of Violation to medical cannabis dispensaries located throughout California. Mr. Murphy, who in some of these notices is identified as a manager of Clean Cannabis Initiative, LLC, alleges that certain medical cannabis edibles and smokable products contain the pesticides myclobutanil, carbaryl and malathion.

Myclobutanil is a Proposition 65-listed reproductive toxicant, added to the list in 1999. Carbaryl was added to the Proposition 65 list as a carcinogen in 2010. In an interesting twist, malathion was added to the Proposition 65 list as a carcinogen on May 20, 2016; the warning requirement becomes effective May 20, 2017, after the date of the notices.

These notices follow another round of recent notices from another plaintiff, the Center for Advanced Public Awareness (CAPA), issued to medical cannabis dispensaries. The CAPA notices allege exposures to marijuana smoke. Marijuana smoke was added to the Proposition 65 list as a carcinogen in 2009.

The Murphy notices have been issued as other California agencies are promulgating regulations to implement the California Medical Cannabis Regulation and Safety Act (MCRSA). The California Bureau of Marijuana Control (formerly the Bureau of Medical Cannabis Regulation) has published draft regulations for public notice and comment which, among other things, establish acceptable and safe residual levels of pesticides (including the three identified in the notices) in medical cannabis edibles, dried cannabis flowers and other processed cannabis. The deadline for comments on these proposed regulations is June 20, 2017. In addition, the Bureau has scheduled four public hearings throughout the state on the proposed regulations. In commenting on these proposed regulations, members of the cannabis industry should be mindful of how the proposed residual pesticide levels should align with the Proposition 65 warning requirements, and should consider submitting comments addressing that issue.

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.