On January 1, 2024, Colorado Marijuana Enforcement Division’s (“MED”) “Use-By” labeling rule, 3-1015(B)(2)(a.5) went into effect, requiring all regulated marijuana cultivators, manufacturers, and stores to include a use-by date on all products harvested, produced, or sold.
The rule, which was first adopted on October 11, 2022, is meant to alert customers that products sold past the use-by date are no longer “optimally fresh” according to the MED. Use-by information must be available to the patient or customer prior to any transfers for products harvested, produced and sold after January 1, 2024. Products harvested or produced prior to January 1, 2024 do not require a use-by date on the label and any products harvested or produced in 2024 that do not have a use-by date can still transfer to a patient or consumer prior to September 30, 2024. The standard length of time for a use-by period determined by the MED is nine months after the harvest or production date of the products. Any product that a store sells past the nine-month timeline must also include a notice to the consumer that the product is past its optimally fresh date. Shelf stability testing is the only way to extend the shelf life of a product, and the testing conducted must support a longer shelf life for each specific product.
The rule requires that licensees enter use-by dates into the Inventory Tracking System for all products prior to any transfer to a dispensary, patient or consumer. It does allow for a store to add labels at the point of sale if not previously added by the store, or the manufacturer or cultivator that it purchased from. The MED is encouraging all cultivators and manufacturers to make use-by dates available online for all products harvested or produced prior to January 1, 2024, but before such products have been sold.
The new rule is somewhat ambiguous when it comes to the duties for cultivators, manufacturers, and stores, and will require further clarification from the MED. However, best practices are for cultivators and manufacturers to assign a use-by date to all harvest and production batches and enter that information into the Inventory Tracking System. Any products packaged for sale to consumers prior to being transferred to a store must include a use-by date and stores must affix use-by dates on products that do not already include such date, or require exit packaging for final sale. Stores must also notify consumers of the use-by date if a product is sold past that date and is no longer “optimally fresh.” Enforcement of these requirements and penalties for noncompliance are not clearly laid out yet, but will become more clear as businesses adapt to these changes and the MED determines how it will handle violations.
The MED’s goal is to protect consumers by requiring licensees to provide more information about the product being sold and improve public health and awareness about the safety concerns surrounding marijuana products. While the new rule does not specifically outline penalties for failure to comply with the labeling requirement, a MED bulletin from August provides a link to a MED Reporting Form for licensees or consumers to report compliance failures. These labeling requirements will likely come with the same or similar penalties as other MED labeling product rules including penalty fees, hearings, corrective action plans, and possibly even license suspension or revocation.
It is essential for industry licensees to review and update their labeling practices and SOPs to ensure that they comply with this new rule change. Failure to do so will not only violate the requirement for consumer transparency, but also expose licensees to regulatory enforcement actions that will be costly and, depending on how strictly the MED enforces these new rules, could result in loss of profits, or even suspension or revocation of the license itself. If you would like to speak more about these changes, please reach out to the Firm.