People, and especially businesses, have been complaining about Proposition 65 since it was passed, overwhelmingly, by California voters in 1986. It requires the state to publish a list of all chemicals determined to cause cancer, birth defects or other reproductive harms. They now number about 900. The Office of Environmental Health Hazard Assessment, in consultation with outside researchers, makes the determination. That agency is the one responsible for the signs and labels you see all over the place: at airports, at Starbucks, and in your local pot shop. This latter one is thanks to cannabis smoke being deemed a carcinogen in 2009.
And now, cannabis might be required to bear yet another warning: that pot smoke and — remarkably — THC might cause reproductive harms, due to "toxins." THC is the molecule in cannabis that gets you stoned. There isn't much science backing up the claim that pot causes cancer, but there's more of it than there is backing up the claim that pot in general, or certainly THC in particular, causes reproductive harms. Despite this, the OEHHA might soon saddle the pot business in California with yet another costly, headache-inducing regulation, forcing companies to put the warning on labels, on shelves, and on product web sites.
The OEHHA's "independent" scientific review panel will meet to discuss the proposal on December 11 and is expected to vote on the matter then. The rules, if enacted, would take effect a year later.
Prop 65 is "one of the most onerous chemical control statutes in the nation," declared the big, global law firm Hunton Andres Kurth in a paper published in September. The OEHHA has been so liberal about which substances pose health risks that somebody created a Twitter account, @prop65bot, that continually issues warnings about random nouns, like "modernists are known to the state of California to cause cancer." Other culprits: "luxuries" and "meatloafs."
But beyond the OEHHA's lampoonable lack of discernment — and lack of awareness of the fact that when people see signs everywhere warning them that they are surrounded by deadly toxins, they tend to take such warnings less seriously — the main beef with Prop 65 is that enforcement doesn't come from the state. It comes either from prosecutors deciding to go after vendors for failing to properly label their goods or, more often, from lawyers looking to make bank from filing civil actions. There have been numerous lawsuits filed against the law, several attempts by the state legislature to ameliorate its worst aspects, and even the introduction of federal legislation to knock back Prop 65. But Prop 65 abides.
For the California cannabis industry, which is struggling under the weight of taxes and regulations as it is, an unfavorable decision from the OEHHA could be more than just a costly hassle. "It's death by a thousand cuts by California regulatory agencies," said Pamela Epstein, general counsel and chief regulatory and licensing officer at Eden Enterprises, an Oakland-based cannabis operation.
Although the federal Centers for Disease Control has declared that cannabis use during pregnancy can lower birth weight, stymie fetal development, and lead to addictive behavior once the baby grows up, industry advocates say the science behind those claims is too uncertain a foundation on which to base onerous legal mandates — at least for now. Because most of the strongest research out there concludes nothing about cannabis use, but only about the use of cannabis in conjunction with the use of tobacco and alcohol. In an exhaustive public comment delivered to OEHHA, science researcher Adrian Devitt-Lee, writing for ProjectCBD, which advocates for sound medical cannabis research, concluded that if the requirement is enacted, it "would misdirect public health and harm-reduction efforts" away from known dangers. He allowed that although "cannabinoids [like THC and CBD] are not intrinsically toxic, they may amplify the toxic effects of alcohol, nicotine" and other nasties. "Thus, public health messages should be tailored toward pregnant women [who are] using multiple substances."
Meanwhile, research indicates that the use of cannabis among pregnant women is growing faster than it is among the general population, more than doubling to 12.1 percent since 2002 among women in their first trimester, according to a study published a few months ago in the medical journal JAMA. Interest is growing in the use of cannabis to relieve pain, stress, and — of particular interest to pregnant women — nausea.
Of course, women should be as careful about cannabis use as they are about ingesting any other potentially problematic substance during their terms. Critics of Prop 65 in general don't say for certain that cannabis — particularly in the form of smoke — is harmless to pregnant women and fetuses. What is certain is that nobody is certain, even if they pretend they are. And the question isn't whether it's wise to ingest cannabis while with child, but whether the government should declare it to be so, and force businesses to warn consumers about dangers that haven't been firmly established as real.
"I'll be interested to see what evidence the OEHHA uses for justification," Epstein said. "Is there a cannabinoid expert on the panel of scientists?"
Good question. So I put to Sam Delson, spokesperson for the OEHHA. "The 11 panel members all have expertise on developmental and reproductive toxicity," he said. "But we are not aware of any with specialization on cannabis in particular."
California Considers Yet Another Label Requirement for Cannabis
Despite flimsy science, a state agency might declare pot a "reproductive toxin."