It’s Time to Speak Up On New Jersey’s Proposed Permanent Cannabis Regulations

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The latest development in New Jersey’s ongoing implementation of its nascent adult-use program features a rare element: a request for feedback and commentary from industry professionals. The proposed permanent regulations, formally published on August 1, 2022, include changes to licenses (including cannabis delivery licenses) as well as clarification on some key issues. But there are plenty of areas that require the insight and expertise of industry professionals and stakeholder groups, and fortunately the New Jersey Cannabis Regulatory Commission (NJCRC) has instituted an open comment period, which is in effect until September 30, 2022.  

Here’s the good and the bad of these proposed permanent regulations from our perspective, and what we’ll include in open letters and comments during this window.    

The Good

Cannabis Delivery 

Overall, one of the most meaningful changes in these regulations involves cannabis delivery in the Garden State. Because of the limited number of dispensaries in New Jersey, allowing for home delivery of cannabis products by third-party organizations improves equity and access to cannabis products and medicine, especially for patients who can’t (or don’t) drive, or who are unable to take time away from responsibilities to restock.

This move is ultimately good for the industry as a whole, as it will improve access to recreational products without in-person shopping.

Personal use testing 

In another win for transparency and consumer safety, consumers in New Jersey are now free to get their cannabis tested for contamination (e.g., mold, mycotoxins) and potency (e.g., THC content) if they suspect labels are incorrect, or they simply want to verify the safety and potency of their products. This move holds manufacturers and processors accountable to THC content and quality controls. 

This may seem like a small thing, but this little change has big potential to help consumers avoid situations like one plaguing the cannabis industry in Arkansas. Three cannabis cultivation organizations and one testing lab in the state are facing a class-action lawsuit after medical cannabis patients allege intentional potency inflation by the cultivators and lab. 

An important caveat: this type of testing does not license consumers to sell any products they test to other consumers. That is to say, personal use testing does not qualify as state-mandated safety or quality testing, and products tested through this route can only be ingested by consumers who request the testing. 

The Sort-Of Good

The CRC announced increases in the acceptable variance range for cannabinoid labeling from 5% to 10%. This is a step in the right direction, but we’re not fully ready to qualify it as “good.” Labeling guidance from the Food and Drug Administration (FDA) sits at 20%, so the standard of 10% is still far too punitive and limiting to do much good for the industry. 

However, this is an example where advocacy made a difference. By asking for increased acceptable variance, we were able to move the needle. It’s not where it should be, but that’s where this public comment period can be extremely useful. Just look at the way New York’s Cannabinoid Hemp Program responded to pressure during its public comment period: 

COMMENT: Comments were received suggesting the accuracy of cannabinoid labeling be

amended from a 10% margin of error to a 20% margin of error, to parallel requirements for

similar products set by the FDA.

RESPONSE: The Department has revised the regulation to allow for a 20% margin of error

between the concentration of cannabinoids on a cannabinoid hemp product’s label and the third-party laboratory test results for such product.

The Bad (But Improveable) 

You’ve heard us say it before, and we’ll say it again: batch size requirements need to be revised in a serious way (yes, this is still an issue). 

Essentially, the proposed permanent regulations left the batch size requirement at 100 lbs, which needs to be reduced. And frankly, batch size requirements shouldn’t appear in this set of regulations at all. Rather, these requirements should be defined in the Testing Guidance document that is yet to be released. This would allow for updates and flexibility as the industry becomes established in the state without being hard-baked into the administrative code, which is unlikely to change.

Another point of improvement: hold times for samples. Currently, the regulations propose a 45-day hold time of samples from issuing the report, which is unusual. Generally, lab retention is based from the day of receipt into the lab so samples can be tracked. 

Since there’s been significant consumer training in the use of QR codes throughout the pandemic (as anyone who has been to a restaurant in the last two years can attest), the CRC has an opportunity to include QR codes on labels, too. This could result in increased transparency for consumers (entire Certificates of Analysis could be linked to each label!). 

Lastly, we advocate that the same guidance for personal use testing—that the testing doesn’t certify a product for sale to consumers—applies for R&D testing done for licensed operators. Right now, it’s a little unclear where the line is, so it’s best (and safest) to clarify this point.
To make your voice heard and leave a comment, follow the link on the CRC’s page here.