The U.S. has reached a tipping point with respect to legalizing marijuana. Cannabusinesses and gangapreneurs, along with advocates across the country, have created a billion-dollar industry in the face of federal prohibition. Whether from a medical or recreational perspective, the question facing patients and adult users is where and how one can consume marijuana and cannabis-derivative products.
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Explore This IssueAugust/September 2017
Marijuana tourism, or “cannatourism,” is the hospitality industry trend of people traveling to states to participate in the new and legal cannabis industry. While it may be legal to purchase marijuana, public consumption is illegal. Public use typically includes any place where the public or a substantial group of people has access. The biggest impediment to a successful cannatourism market is identifying places where it is permissible to consume the products that are purchased.
The prohibition on public consumption is a concern for all facets of the hospitality industry, including restaurateurs who wish to develop cannabis-infused menu items. Consumers will have to wait for regulatory changes before they can enjoy a cannabis-infused restaurant meal.
Cannabis use requires private spaces. Without access to a private space, there are limited options for consuming legally purchased cannabis products. It’s something that states will grapple with in the coming years to resolve the cannatourism conundrum.
The Alaska Alcohol & Marijuana Control Office has been considering rules to allow a designated area for onsite consumption within a licensed retail marijuana store. This would make the on-premise consumption of marijuana a legal reality by creating the first regulated, commercial cannabis consumption locations. It could be a first step toward allowing restaurants to serve cannabis-infused meals.
The Popularity of Edibles
Edibles containing cannabis are increasing in popularity. For example, part of the recent debate in the Florida Legislature over implementing the new constitutional amendment expanding Florida’s medical marijuana industry focused on smoking marijuana. Since smoking is the most common form of consuming marijuana, why is there controversy surrounding this practice?
The process of smoking involves the burning or igniting of marijuana and inhaling the smoke. With public health perceptions aimed at mitigating harmful tobacco smoke, it is natural to understand the reluctance to encourage smoking marijuana. Florida legislators decided that alternative methods of consumption were safer, including commercially-produced food products. The concept of edible cannabis appears to be more palatable for politicians. On the recreational, adult-use front, as marijuana use has become destigmatized, smoking cannabis is facing competition from other forms of consumption, such as edible cannabis products.
Creative entrepreneurs are producing a variety of edible products made with extracted marijuana oils containing cannabinoids: active chemicals such as tetrahydrocannabinol (THC) or cannabidiol (CBD). Once the cannabinoids are extracted into liquid form, they can be incorporated into ordinary food. Because the stomach absorbs and processes the cannabinoids slower than the lungs, the oral method of consumption involves a prolonged release of cannabis into the system. The slow metabolism of marijuana-infused edible food products is a benefit for recreational users who want a long, continuous high. Similarly, these products can be a critical part of a medical patient’s cannabis-use regimen because the medicine is absorbed and metabolized slowly through the digestive system. A more extended release of the drug can have palliative outcomes for patients with certain ailments that may benefit from a more sustained therapeutic effect.
But the cannatourism conundrum means there are no opportunities for on-premises consumption of edible food. Restaurants cannot obtain licenses to produce marijuana-infused products or sell edibles to consumers. The future of the U.S. marijuana industry may eventually see marijuana bars or restaurants. One can imagine a multi-course meal at a gourmet restaurant involving low-dose infusions for each course. While this joie de vivre experience may fit well with the foodie cultural revolution, we are not there yet.
A work-around solution involves private catering. To avoid the public use prohibition, social consumption may involve such private use as catered medicated meals in states with medical use only laws, or cannabis-themed dinner parties in recreational law states. These are happening more frequently as connoisseur- or pharmaceutical-grade cannabis is being seen as a luxury experience, like drinking fine wines.
Social cannabis use is taking cues from the food and beverage industry. Marijuana-infused food pairings, like wine dinners, are becoming part of the overall cannabis experience. Under this scenario, chefs or caterers may be hired to prepare meals at private residences in accordance with the jurisdiction’s laws.
Of course, facilitators of cannabis dinners must be mindful of how the intoxicant may influence diners. They must understand how edibles are metabolized, and that the resulting intoxicating effect is different from smoking. If the cannabis dosage is not incorporated into the recipe in moderation, or if the food is improperly prepared, the meal can result in overdoses or foodborne illnesses, which could trigger potential liability.
Cannabis Food Safety
The popularity of cannabis-infused edibles may be an even greater food safety risk than catered dinners because of the number of consumers such products may reach. Companies recalling marijuana-infused edible products for ordinary food safety reasons has become a common practice. Such recalls have ranged from failing to meet packaging requirements to prevent foodborne illnesses to producing products found to contain potentially dangerous (to humans) pesticides, which are banned for cannabis cultivation. Other problems have resulted from erroneous or misleading labels that do not reflect accurate dosages, ingredients, or potency.
Third-party independent testing laboratories and standard operating procedures that incorporate Hazard Analysis and Critical Control Point, i.e. HACCP, plans and current Good Manufacturing Practices are necessary for the production of safe marijuana-infused food products. State laws and regulations are evolving to incorporate these food safety principles.
In Florida, cannabis is approved only for medicinal uses, but cannabis production facilities are still subject to food safety requirements. These new requirements mandate that licensed medical marijuana treatment centers demonstrate that their processing facilities have established a food safety Good Manufacturing Practice (such as the Global Food Safety Initiative) with oversight and inspection by a nationally accredited certifying body. Florida has taken this a step further by initiating the development of regulations tailored to these products. For example, the Florida Department of Agriculture and Consumer Services must assist the Florida Department of Health in developing testing requirements for contaminants in edibles, including sanitation rules that apply to the storage, display, or dispensing of edibles.
In April, the California Office of Manufactured Cannabis Safety released proposed rules that address food safety concerns. The rules prohibit edibles that contain potentially hazardous food, including products that must be temperature controlled, perishable bakery products that must be maintained in cold temperatures to prevent the growth of microorganisms, and dairy products. Also, no ingredients other than cannabis extracts or concentrates can be used to manufacture edibles unless they are FDA-approved. Licensees are prohibited from infusing alcoholic beverages with cannabis, and edibles cannot contain additives (like nicotine or caffeine) that would increase their potency or create an unsafe combination with other psychoactive products. The proposed rules mandate that manufacturers must ensure that all personnel complete a food handler course accredited by the American National Standards Institute.
Although these regulations are designed for the commercial production of cannabis-infused edibles, the overall food safety concerns are relevant for the unlicensed, off-site preparation of cannabis-infused meals in private settings.
Food Safety Recommendations
The FDA Model Food Code, which has been adopted across the country, is designed to ensure proper food handling and production to avoid contamination and foodborne illness. This is because such problems are generally caused by microbiological, chemical, and physical hazards that are introduced into the food before it reaches the consumer. Five major risk factors have been identified as leading to foodborne illness: 1) improper holding temperatures, 2) inadequate cooking, 3) contaminated equipment, 4) food from unsafe sources, and 5) poor personal hygiene.
The risks underlying traditional food safety concerns are magnified when one considers that many consumers of cannabis food products are using the products for medical purposes and, therefore, may be immune-compromised individuals. For example, a common food safety requirement is that food handlers ensure proper temperature controls and food that has not been closely monitored cannot be served to highly susceptible populations, which would include many medical marijuana patients.
Caterers must be especially cognizant to ensure that food safety protocols are in effect, particularly for contaminated equipment and poor personal hygiene, as these are avenues for contaminants to get into food making it unsafe.
Best practices go above the minimum regulations to ensure food safety throughout the food production activities. This is particularly important when handling a federally-controlled hallucinogenic substance that can have different interactions and tolerances for different people.
Aside from having a comprehensive knowledge of cannabis concentrate and extracts and working with infusions to produce an intoxicating meal, following ordinary food safety guidelines is imperative. Individuals interested in pursuing this kind of business model must: understand and implement food safety requirements, follow standard food safety protocols for the preparation and transfer of food, create and implement defensible best practices for caterers operating at a host’s home, and understand social-host liability for guests that over-consume cannabis-infused edibles and available insurance options.
Finally, consumption options at public restaurants will have a different regulatory structure with other legal considerations. A public-use, on-premises licensing structure is feasible, once the public consumption problem is resolved, that could be the future of legalized cannabis in the U.S. It is critical to understand the legal issues involved in the commercialization of cannabis-infused food products from a regulatory, safety, and liability perspective.
Cetel and Wiand are attorneys with GrayRobinson’s Alcohol Beverage, Medical Marijuana, and Food Law Departments, a group of lawyers and government consultants with extensive experience in all aspects of the commercialization of heavily-regulated products. Reach them at firstname.lastname@example.org and email@example.com.