MMRA | Fraser Blog

Michigan Regulatory Agency Clarifies Strict Guidelines for Marijuana Packaging Will Be Enforced Effective February 2022

One of the important objectives of legal marijuana regulations in Michigan is keeping the product out of the hands of minors. To that end, the Michigan Marijuana Regulatory Agency (“MRA”) recently released an advisory bulletin that outlines packaging rules and enforcement guidelines for edible marijuana products in Michigan. This advisory comes in the wake of media reports indicating the number of cases of children ingesting marijuana products has risen based on data from Michigan Poison Centers.

“The MRA is aware of many non-compliant marijuana-infused edible packaging and products available in the market today,” the agency wrote in a statement. “Some of the marijuana packages that appeal to children have images of fruit, animals, or food on the packaging. Others use words that are commonly used in commercial candy such as milk chocolate, peanut butter, gummies, or chews without using the words THC, marijuana, or cannabis as modifiers.”

The MRA also announced that its Enforcement Division’s Field Operations team will be educating marijuana businesses regarding the contents of its bulletin and, effective February 2, 2022, will begin conducting investigations when necessary for marijuana-infused edible products or packaging that fails to comply with the rules. Violations could lead to significant fines.

Relevant Regulations

As set forth in the bulletin, Rule 3(9) of the Marijuana-Infused Products and Edible Marijuana Product Rule Set states a producer of edible marijuana product shall comply with the following:

Edible marijuana product packages shall not be in a shape or labeled in a manner that would appeal to minors aged 17 years or younger. Edible marijuana products shall not be associated with, or have, cartoons, caricatures, toys, designs, shapes, labels, or packaging that would appeal to minors.
Edible marijuana products shall not be easily confused with commercially sold candy. The use of the word candy or candies on the packaging or labeling is prohibited.
Edible marijuana products shall not be in the distinct shape of a human, animal, or fruit, or a shape that bears the likeness or contains characteristics of a realistic or fictional human, animal, or fruit, including artistic, caricature, or cartoon renderings. Edible marijuana products that are geometric shapes and simply fruit flavored are permissible.
Edible marijuana products must be in opaque, child-resistant packages or containers that meet the effectiveness specifications outlined in the Code of Federal Regulations (16 CFR 1700.15). Edible marijuana products containing more than one serving must be in a resealable package or container that meets the effectiveness specifications outlined in 16 CFR 1700.15.

The MRA explained that it is aware that there are many non-compliant marijuana-infused edible packaging and products available in the market today. According to the MRA, producers of non-compliant packaged product have the following options:

Repackage the products into new, compliant packaging.
Place non-transparent stickers on the package to clearly label the product as a marijuana product, THC product, or cannabis product using the same or larger font as the words commonly used in commercial candy.
Place non-transparent stickers on non-compliant portions of the packaging for marijuana- infused edible products.
Voluntarily destroy the non-compliant product.

Provisioning centers and adult-use retailers who possess packaged products that are non-compliant have the following options:

Place non-transparent stickers on non-compliant portions of the packaging for marijuana-infused edible products.
Voluntarily destroy the non-compliant product.
Adult-use retailers can compliantly send marijuana products back to adult-use processors via a secure transporter.

The MRA also advises that licensees need to correct products or packaging that are “egregiously non-compliant” immediately – or as soon as possible – rather than waiting until February 2, 2022. Examples of egregiously non-compliant products or packaging are identified in the bulletin.

What this means for marijuana product producers

Marijuana manufacturers and retailers should review the advisory bulletin and the underlying regulations, and take steps to begin correcting non-compliant products or packaging immediately in order to ensure compliance by February 2, 2022. For assistance, please contact Paul C. Mallon, Jr., Shareholder and Chair of Fraser Trebilcock’s cannabis law practice.

Paul C. Mallon, Jr. is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.

Governor Whitmer Signs Law Regulating Delta-8 THC Manufacturing and Sales Starting October 11, 2021

House Bill 4517 is part of a package of legislation that will regulate the manufacturing, sale, and distribution of delta-8 THC products much like other legal marijuana products in Michigan

Governor Whitmer has signed a law allowing only regulated delta-8 THC products to be manufactured and sold in Michigan, effective October 11, 2021. The move to regulate, rather than ban, the delta-8 THC strand was supported by the cannabis industry.

Starting this fall it will be illegal for businesses in Michigan to sell delta-8 products without proper licensing from the Michigan Marijuana Regulatory Agency (“MMRA”). As we detailed in a previous blog, there are currently no standards for selling or distributing delta-8 THC products, which has led to a number of Michigan-based retailers like gas stations and convenience stores selling unregulated delta-8 items.

These products have not undergone the testing and tracking that is required for other legalized recreational marijuana products in Michigan, including those derived from the more common delta-9 THC strand.

The legislation categorizes all THC isomers of the cannabis plant as marijuana, giving the MMRA oversight capabilities. As of mid-July, the sale of delta-8 products is banned in 14 states (Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, New York, Rhode Island, Vermont and Utah). Delta-8 status is currently under review in four additional states.

The differences between delta-8 and delta-9

Delta-8 THC is a synthetic substance derived from hemp with the only difference being the inclusion of a double bond. The science behind the two compounds is still being researched but the consensus is that due to the location of its double bond, delta-8 binds to the body’s cannabinoid receptors in a slightly different manner than delta-9 THC, resulting in less of a high.

However, there is little research and no reliable clinical trials on delta-8 THC. Delta-9 marijuana products are strictly regulated and subject to stringent testing standards, whereas delta-8 products have typically been produced using unregulated, chemically synthesized cannabinoids that can include additives and byproducts that have not been researched and could be harmful to some consumers.

Impact on businesses

Unlicensed commercial production or sale of delta-8 in Michigan will be punishable by fines starting October 11, 2021. Any retailer operating in Michigan must obtain a state license to sell or distribute delta-8 THC products, which includes mandatory tracking and testing. Only adults 21 and older can legally have or use the compound in the state. The MMRA created a flyer that provides further details.

The Michigan Cannabis Industry Association and the Michigan Cannabis Manufacturers Association both expressed support for the regulation of delta-8 rather than a full ban. The MCMA’s Board Chair Shelly Edgerton told MLive in a July 14 article that the law “takes a giant step toward enforcing the same strict high testing, health and safety guidelines for any product that mimics a cannabis high that is either inhaled or ingested followed by our state’s licensed growers and processors.”

We will continue to provide additional updates on additional developments regarding delta-8 THC, and other issues affecting the marijuana industry in Michigan. If you have any questions, please contact Paul Mallon or your Fraser Trebilcock attorney.

Paul C. Mallon, Jr. is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.

Michigan House Committee Advances Bill to Regulate delta-8 THC

On May 18, 2021, the Michigan House Regulatory Reform Committee unanimously approved a package of bills, including House Bill 4517, requiring hemp-derived delta-8 tetrahydrocannabinol (“THC”) to be regulated by the Michigan Marijuana Regulatory Agency (“MMRA”).

Delta-8 THC is a cannabis compound that has gained in popularity because of its similarity to delta-9 THC prevalent in marijuana plants. Delta-8 is produced by extracting CBD from industrial hemp and then using acetic acid to turn it into THC.

Producers of delta-8 THC argue that the product is legal under the federal 2018 Farm Bill, which legalized hemp extracts and other hemp products. However, the U.S. Drug Enforcement Administration (“DEA”) issued an interim final rule in 2020 declaring: “All synthetically derived (THC) remain Schedule I controlled substances.” The Hemp Industries Association and a South Carolina CBD manufacturer initiated a lawsuit against the DEA challenging the rule.

Currently, delta-8 THC is unregulated in Michigan. The new bills, which have been sent to the full House of Representatives for consideration, would bring the delta-8 THC within the MMRA’s regulatory framework.

The move to regulate delta-8 THC has the support of the Michigan Cannabis Manufacturer’s Association (“MCMA”). In a statement, MCMA executive director Stephen Linder said: “Any product considered medicine should adhere to the same health and safety standards as medicines dispensed in pharmacies. Currently these products are available to anyone and can be found in gas stations, party stores and smoke and vape shops.”

Michigan is not the only state to take action to crack down on access to delta-8 THC. According to Hemp Industry Daily at least 12 states have imposed bans on the product.

We will continue to keep you updated about developments with respect to the delta-8 THC legislation. In the interim, if you have questions, please contact Fraser Trebilcock shareholder Paul Mallon.

Paul C. Mallon, Jr. is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.