Compared to other states, there is a lot to like about Oregon’s medical and recreational marijuana programs. We can say that now that the statutory framework for Oregon pot is set and the bulk of administrative rule-making is behind us. At this point, we are waiting on rules related to February’s short legislative session and a few odds and ends. One unsettled area is potency limits for edibles in both the retail and medical markets. It’s not looking great.
Right now, concentration limits are covered by temporary rules that expire on June 28, 2016. Those rules were promulgated by the Oregon Health Authority (OHA), but apply to both the retail and medical markets. OHA will be issuing permanent rules, which again will apply to both markets. We expect to see the new rules very soon, alongside rules governing early sales of edibles to recreational customers under Oregon’s “early start” program.
Currently, for retail marijuana items, the maximum concentration or amount of THC per serving allowed is a conservative 5 mg for both scorable and non-scorable cannabinoid edibles, with container sizes allowed up to 50 mg. For medical marijuana items, there are no per serving limitations, although the container size limit is 100 mg. Under both regimes, there are separate limits for topicals, tinctures, concentrates/extracts and other products. These limits are mostly lower for retail items than medical items.
Last week, OHA issued its medical and retail concentration and serving size limits. These limits remain low, particularly in the retail market, which remains pegged at 5 mg of THC per serving and 50 mg per container. As the Oregon Cannabis Association has argued, low potency 5 and 50 mg serving/package limits are unnecessary to protect public health and safety. Instead, the low limits will create higher costs (passed to the consumer), more packages (yuck) and a possibly even an increase in black market activity.
The 5 and 50 mg limits appear especially low given that the Colorado and Washington retail market limits are twice those amounts. Because Washington and Oregon share a border, we expect at least some Oregonians will cross the river to get their edibles in Washington State, just as they did for their recreational cannabis before Oregon fully legalized. Not only would this impair the Oregon industry and state tax receipts, but it could create interstate commerce issues under the federal Controlled Substances Act. That would be a shame.
OHA has stated that its goal with these limits is to protect the Maureen Dowds of the world, and children. In a belt and suspenders approach, OHA also will attempt to head off danger with labeling and packaging rules (similar to its bridge rules here). As of today, there are no scheduled hearings on the proposed OHA limits, but email comments are being accepted at firstname.lastname@example.org. [CORRECTION: the OHA hearings schedule on the new rules, including proposed edibles concentration limits is posted here.] We will continue to work with OHA on behalf of our many Oregon clients and we will keep you apprised as to developments.