Unauthorized pesticide use in marijuana cultivation has made the news recently in Washington State and Colorado. To address the situation, the Washington State Liquor and Cannabis Board (the “Board”) issued emergency marijuana recall rules.
The emergency rules provide for three types of recalls 1) Exempt Market Withdrawals; 2) Licensee or Board Investigation Initiated Recalls; and 3) Board Directed Recalls.
Under an Exempt Market Withdrawal, a licensee may voluntarily withdraw a marijuana product for “aesthetic reasons or other similar deficiencies in product or packaging.” The rules do not define what constitutes an “aesthetic reason” so there seems to be wide latitude for a licensee to withdraw a product based upon what it sees as a product or packaging defect. Note that Exempt Market Withdrawals do not apply if there is a risk to public health and safety.
When evidence exists that unapproved pesticides have been used or there is other evidence of risk to the public health and safety, recalls are required. These recalls can be initiated either by a licensee – “Licensee-Initiated Recall”, or by the Board after investigation – “Board Investigation-Initiated Recall.” Under this type of recall, the licensee is responsible for the recall and destroying the affected product under Board supervision.
The emergency rules require licensees subject to a recall to develop a recall plan. Among the items that must be included in a recall plan are: designation of recall coordinator; procedures for preventing/minimizing product distribution to consumers; procedures to retrieve and destroy the product; and a communications plan to notify those affected of the recall.
A Board Directed Recall is triggered if a licensee fails to comply with the recall requirements and/or a licensee’s recall efforts fail to meet the urgency of the risk to the public health and safety. A Board Directed Recall can result in the seizure and destruction of the affected product and the possibility of summary license suspension.
Given the recent spate of voluntary recalls in Washington State, licensees would be wise to proactively prepare a recall plan. At minimum, licensees should carefully review the emergency rules and be prepared to address possible recall issues. Pesticide use in the marijuana industry is of paramount concern to consumers and thus will likely continue to raise regulatory and legal issues for licensees.
For more information on the regulation of marijuana businesses, please contact Heather Wolf.