On November 21, the New York Cannabis Control Board revised the Cannabis packaging, labeling, marketing, and advertising regulations, filing these changes to the state with public comment. This revised, 36-page document outlines a variety of rules protecting against advertising practices that do not “jeopardize public health or safety, promote youth use, or be attractive to individuals under twenty-one.”
The document is extensive so here is a basic breakdown of everything you need to know about New York Cannabis Packaging, Labeling, Marketing, and Advertising Regulations.
Not Marketing to Individuals Under 21
Labeling, packaging, advertising, and marketing cannot be attractive to individuals under twenty-one, which OCM defines as “pleasing or appealing to persons under the age of twenty-one by using or including, among other things:
- Cartoons;
- Bubble-type or other cartoon-like font;
- Bright colors that are ‘neon’ in appearance
- Similarities to products or words that refer to products that are commonly associated with or marketed in a manner so as to be attractive to individuals under twenty-one, including but not limited to, any imitation of food, candy, soda, drinks, cookies, or cereal, in labeling, packaging, advertising, or marketing
- Terms ‘candy’ or ‘candies’ or variants in spelling such as ‘kandy’ or ‘kandeez’
- Symbols, image, characters, public figures, phrases, toys or games that are commonly used to market products to individuals under the age of twenty-one; or
- Images of individuals who could reasonably appear to be under the age of twenty-one.”
Cannabis Packaging
The proposed rules set minimum standards for the retail packaging of cannabis products. A retail package shall:
- be child-resistant
- be tamper-evident (with respect to a device or process, bearing a seal, a label, or a marking that makes unauthorized access to or tampering with a package, product, or container easily detectable);
- fully enclose the product, minimize oxygen exposure and prevent the contamination and/or degradation of the cannabis product; and
- not impart any toxic or deleterious substance onto the cannabis product.
The proposed rules also include packaging prohibitions. A retail package shall not:
- contain brand elements beyond one brand logo and the brand name (which has size restrictions but can be any font and color as set forth in the proposed rules);
- contain any pictures, images, or graphics, other than what is required by the Office;
- contain any features that emit scent or sound;
- contain any features that change or alter a package’s appearance through technology, other than for anti-counterfeiting purposes;
- be made attractive to individuals under twenty-one;
- be made of single-use plastic, unless containing a minimum 25% post-consumer recycled content; and
- violate any additional requirements as set out by the OCM.
Cannabis Labeling
Like many other states with adult-use cannabis, New York Cannabis Marketing rules impose stringent labeling requirements on all packaging.
Cannabis Label Requirements
First, cannabis products must contain certain information on the principal packaging display panel, which means “the panel of the retail package or the marketing layer that the manufacturer or distributor intends to be displayed at retail.” Principal display panel is a term used by the FDA and usually means the front of the package easily seen by customers. The proposed rules state that the principal packaging display panel “shall have a white background with black text containing the following information:
- milligrams per single serving of total THC, total CBD content and any other marketed phytocannabinoids, or terpene profile;
- milligrams per package of total THC;
- the amount of total THC and any other marketed phytocannabinoids as a percentage of volume, except if the cannabis product is in the form of an edible;
- number of servings in total for the cannabis product except for cannabis flower and other forms of cannabis for vaporization;
- weight of cannabis product; and
- lot number.”
In addition to the panel requirements, the “retail package and any marketing layer shall include the following information:
- a list of all ingredients in descending order of predominance by weight in the cannabis product – both active and inactive. The ingredient list must include and separately list, in bold, any major allergens
- Edible products and beverage products will include a nutritional label
- a list of any solvent used to produce the cannabis product, if applicable;
- the date of expiration of the unopened cannabis product;
- use by date;
- the proper storage conditions;
- name, address, license number, and contact information of the manufacturer or distributor;
- any one of the following three universal symbols on the upper left 25% of the marketing layer at a minimum size of 1.25 inch in height for the square symbol, 0.5 inch in width for the vertical symbol, and 0.5 inch in height for the horizontal symbol. The symbol must be made conspicuous by printing the symbol on, or outlining the symbol with, a contrasting color
- clear usage instructions;
- lot unique identifier or lot number or bar code;
- a scannable bar code or QR code linked to a downloadable certificate of analysis, or linked to a website where the certificate of analysis can be downloaded; and
- any other information required by the Cannabis Control Board
Cannabis Packaging Warnings
Retail packaging must also contain the following warnings, in bold and in a bright yellow box on the principal packaging display panel:
- This product contains cannabis and THC;
- In all capital letters as indicated: “KEEP OUT OF REACH OF CHILDREN AND PETS. For use only by persons 21 years and older”;
- Warning: Do not use if pregnant or nursing;
- National Poison Control Center 1-800-222-1222;
- For cannabis products intended to be smoked, inhaled, or vaporized: Warning: Smoking or vaping is hazardous to health;
- For cannabis products intended to be ingested orally: Warning: Effects of this product may be delayed by 4 or more hours;
- For all topical products: Warning: For topical use only. Do not eat or smoke; and
- Any other warning required by the [CCB].
The labeling on retail packaging must be no smaller than 6-point size font and must be clearly written or printed in English (though licensees may include other languages). The labels must be unobstructed and conspicuous.
Cannabis Packaging Content Restrictions
Cannabis Retail packaging shall not display any content or be labeled in any manner that:
- is made attractive to individuals under twenty-one
- includes any false or misleading statements including, but not limited to, any health claims;
- includes the term “organic”;
- includes the term “craft” unless the processor meets the term as defined [by OCM rule]
- causes a reasonable consumer confusion as to whether the cannabis product is trademarked, marked or labeled in a manner that violates any federal trademark law or regulation;
- contains any illustration or content that falsely portrays cannabis or cannabis products as being authorized under [New York’s medical cannabis or hemp program]
- depicts cannabis, excluding the universal symbol, cannabis products, or paraphernalia
- promotes overconsumption;
- promotes price, price reductions, or any other discount or coupon;
- depicts a child or other person reasonably appearing to be under the age of twenty-one; and
- violates additional prohibitions as set out by the OCM
Cannabis Marketing and Advertising
- A licensee shall only advertise by means of television, radio, print, internet, mobile applications, social media, other electronic communication, or other print publication, unless the advertisement is an outdoor sign pursuant to Section 129.4(a) of this Part, if the licensee has reliable evidence that at least 90%, unless otherwise determined by the Office, of the audience for the advertisement is reasonably expected to be twenty-one years of age or older. The burden of proof of the audience composition lies with the licensee.
- A licensee shall maintain records and documentation to establish that its advertising and marketing meet the requirements of this Part.
- A licensee may sponsor a charitable, sports, or similar event provided however, a licensee shall not advertise at, or in connection with, such an event unless:
Required Notices and Warnings
A licensee needs to include its name and license number on all advertising and marketing materials. Any cannabis ad must include the following statement (verbally or in writing, depending on the medium):
- For use only by adults 21 years of age and older. Keep out of reach of children and pets. In case of accidental ingestion or overconsumption, contact the National Poison Control Center hotline 1-800-222-1222 or call 9-1-1. Please consume responsibly.
In addition, any marketing or advertising of cannabis or cannabis products must include one of the following phrases in its entirety in a rotating manner:
- “Cannabis can be addictive.”;
- Cannabis can impair concentration, coordination and judgment. Do not operate a vehicle or machinery under the influence of cannabis
- There may be health risks associated with consumption of this product
- Cannabis is not recommended for use by persons who are pregnant or nursing
All warnings in print or digital advertisements must be displayed :
- in English
- in Times New Roman, Calibri, Arial or Helvetica font
- in text no smaller than size 6 font
- bolded
- legible, unobscured, and visible to the consumer, and
- in a bright yellow text box so as to stand out from the surrounding advertisement.
Prohibitions
No New York Cannabis marketing or advertising of cannabis products shall:
- use images or audio that may be attractive to minors
- be in the form of a billboard
- use or display colloquial references to marijuana and cannabis or use depictions, digital images, or icons of cannabis, cannabis products, paraphernalia, or the imagery of smoking or vaping, including but not limited to “stoner”, “chronic”, “weed”, “pot”, or “sticky buds.”
- Be false or misleading or contain health claims or representation that use of cannabis has curative or therapeutic effects
- Promotes over or rapid consumption or promotes potency or THC concentration
- Falsely portrays adult use cannabis as being medical cannabis or hemp
- Asserts that cannabis or cannabis products are safer because they are regulated by the Cannabis Control Board (CCB) or OCM.
- Depict a child or person under 21. Talent portrayed in cannabis advertising should be at least 25 years old.
- Contain any obscene or indecent statement, design, or representation, picture or illustration
- Be within or readily observed within 500 feet of an elementary or secondary school, recreation center or facility, childcare center, playground, public park, or library.
- Be on or through handbills passed out in public areas (e.g., parking lots or public owned property)
- Include medical symbols that indicate the product is a medical product.
- Sponsor an event using a licensee’s brand, business, or trade name
- Utilize unsolicited pop-up or banner ads on the internet other than on age-restricted websites for people 21 and over who consent to view cannabis-related material.
- Produce items for sale or promotional gifts, such as t-shirts or novelty items, bearing a symbol or reference to cannabis
- Advertise free or promotional items including, gifts, giveaways, discounts, point-based reward systems, customer loyalty programs, coupons, and free or donated cannabis, except for the provision of branded exit packages by a licensee for the benefit of customers after a retail purchase is completed,
- Or violate any other rules from the CCB
Revisions to New York Cannabis Packaging, Labeling, Marketing, and Advertising Regulations
The CCB revised the original regulations for New York Cannabis Marketing, Advertising, Packaging and Labeling set in June adding new rules and punishments for violation
Some of the new rules include protecting against misuse of the following labels unless the products properly meet their standards
- Vegan
- Craft
- Gluten-Free
- Organic
- Kosher
Violations and Penalties
- A licensee shall immediately remove or discontinue advertisements if the Board determines the marketing or advertising violates the provisions of Cannabis Law and this Part or if the licensee fails to provide records to the Office upon request that establishes the marketing or advertising meets the requirements of Cannabis Law and this Part.
- In the event a third-party has used a licensee’s trademarks, brands, names, locations, or other distinguishing characteristics in a way that does not comply with this Part or any other statute, rule or regulation, the licensee shall immediately notify the Office and issue a cease-and- desist notification to the third-party, and the licensee may pursue appropriate legal action.
- The Office may take any action against any licensee who fails to comply with this Part, including but not limited to recommendations to the Board for suspension, cancellation, or revocation of a license, imposition of any fees or fines, requiring a licensee to cease by a date determined by the Office the non-compliant marketing and advertising and requiring removal by a date determined by the Office of any advertisement still being published or displayed, and any other penalties set forth in Cannabis Law and Part 133 of this Title.
Takeaway
New York has an extensive and restrictive list of rules and regulations now in place. It can be difficult to ensure you meet each of their standards, which is why letting WJ Media Group handle your cannabis marketing is the right choice. You should not have to guess if you are safely marketing your cannabis products in New Jersey or New York, instead let us handle it for you, safely and more effectively. WJ Media group also offers consulting for your business in production, finding a retail location, SEO, Web Development, Social Media Management, and more. We are located in Central New Jersey but have clients all over the country. Feel free to reach out any time to learn more about how we can further your cannabis business.
