This article was originally published on Hoban Law Group

Determining what edible to consume is an art all by itself. Making that choice when you suffer from food allergies often makes the decision all the more challenging.

Despite the continued federal illegality of cannabis, cannabis products are still obligated to abide by Federal labeling requirements requiring the disclosure and identification of the presence of common allergens, including tree nuts (including coconut and almonds), peanuts, fish, shellfish, dairy, soy, eggs and/or gluten. Labels often do identify the presence of those items and sometimes even the traces thereof. Although companies are seemingly committed to following federal requirements, there is still a continued absence of additional, more specific information that could help individuals with allergies make better-informed decisions when selecting edibles.

A commitment to providing more information in the labeling of common allergens not only helps consumers but also has the propensity to battle the stigma of cannabis as an underground and unregulated industry by embracing more advanced self-regulation and increased transparency. Additional information promotes not only transparency in the production and packaging processes, it provides valuable information to the discerning customer in addition to promoting better business practices. With roughly one in twenty adults allergic to peanuts or tree nuts, at least 5% of purchasers are directly impacted by the information related to the presence of and management of nuts in a manufacturing facility.

In the marketplace today, common label designations include “may contain traces of”, “produced in a facility that also processes” or “produced on equipment that also processes.” Rarely is more information provided. Even though broad strokes disclosures satisfy federal requirements and limit legal liability, they do not do much to inform consumers suffering from allergies who could eat something produced with care but cannot eat food products that may contain traces of. With anxiety and paranoia a potential consequence of overdosing, the availability of more information about the presence of allergens on a label could potentially cure an unwarranted freak-out. More detailed information could even help avoid emergency room visits and the related trauma and anxiety from experiencing allergic reactions or the vestiges of one. No one wants the associated trauma and paranoia of hives in their mouth or wheezing while under the influence of an edible because they ate something that may contain traces of and it actually contained traces of the allergen.

The “may contain traces of” designation is good for the edible manufacturer at discharging liability, but it does not do much for consumers that are actually allergic to the items beyond signal that if they consume the product, there is a legally identifiable amount that could potentially trigger a severe allergic reaction. The language provides no information as to why there may be traces of the allergen. It is possible the language on the label is being deployed primarily for the purpose of discharging liability and not accurately depicting the potential risk presented by the product. For the affected consumer, the business practices used to segregate common allergens or otherwise avoid cross-contamination or contact is what is critical for determining the likelihood of and magnitude of the risk of any potential contamination, and therefore the risk presented by the consumption of an edible. May contain traces of language, while good for insulation from liability, is not informative as to how the traces may have occurred and has the potential to be misleading and deter purchasers that would not be deterred if the label were more accurate at disclosing where in the production chain a potential trace or contamination could have occurred.

Edibles product manufacturers could lead the charge by promoting the use of more informative labeling disclosures. While such a move may cost fractions of a penny in ink and packaging real estate, the goodwill it can buy is invaluable. The loyalty of the allergy afflicted consumer (and the purchasers who care for or care about them) should not be understated. If a little extra print turns 1 in 20 customers into a lifetime customer, it is probably worth the rub.

Manufacturers currently provide notice if there are “traces of,” or if equipment or a facility contains a common allergen, but they could go further. Four potentially more informative versions of “may contain traces of” or “made on the same equipment as other items that include…” or “made in the same facility as items that include” are:

1. Produced in a facility but on separate equipment,

2. Produced on equipment, that processes INSERT ALLERGEN, but using best/reasonable business practices to segregate allergens in the production and storage process.

3. Produced on equipment, that processes INSERT ALLERGENS
where the facility produces products containing allergens on different days than products not containing INSERT ALLERGENS.

4. Produced in a facility that processes INSERT ALLERGENS where the facility produces products containing allergens on different days than products not containing INSERT ALLERGENS. All production machinery is cleaned between the production of different types of edible products.

Cannabis Edibles and Allergens