New York’s ‘Symbolic’ Failure In Cannabis Regulation (Op-Ed)

“New Yorkers are stuck with the OCM symbol for now, but CCB’s rejection of low-hanging regulatory fruit offers valuable lessons to other state regulators.”

By Dr. David L. Nathan, Doctors for Cannabis Regulation

With cannabis legalization sweeping across the United States, state regulatory bodies face pressure and scrutiny in their efforts to build a legal industry from the ground up. When formulating regulations, they balance the needs of public health, public safety and social justice.

Fortunately, industry standards and recommendations from time-tested consensus standard organizations make some of their choices easy. Unfortunately, even when handed a “no-brainer” standard on a silver rolling tray, New York’s Cannabis Control Board (CCB) made an unforced error that will potentially harm children, patients, small business owners and the general public—groups that cannabis regulation is explicitly intended to protect.

CCB has faced extensive criticism for its “bungled rollout” of the adult-use cannabis industry and its failure to deliver on social equity commitments. One founding CCB member recently resigned amidst the controversy.

Regrettably, CCB has now mandated that all regulated cannabis packages bear a perplexing and intricate product symbol, serving as a persistent and highly visible reminder of its unwavering resistance to the unanimous advice of the cannabis policy community.

In March, CCB took less than two minutes to approve a set of labeling regulations, without any mention of a letter from dozens of stakeholder organizations urging them to reject their homemade symbol in favor of a straightforward industry standard. Marijuana Moment and other outlets publicized the letter in advance of the March CCB meeting.

Looking like a parody of “design by committee,” the New York symbol was designed by the Office of Cannabis Management (OCM) and features three separate elements enclosed within a black rectangle.

The NYS OCM symbol.

CCB received immediate pushback for a design that couldn’t pass Symbology 101. The detailed and complex OCM symbol dilutes the primary purpose of the symbol: the rapid identification of cannabis products to prevent accidental ingestion by children and adults. On typically small cannabis product packages, the large symbol size is impractical and steals space from critical labeling elements like product warnings.

The OCM symbol requires four-color printing, which is expensive. In a regulatory space intended to right the wrongs of the failed War on Drugs, the OCM symbol creates a barrier to entrepreneurs from historically oppressed communities who lack the capital to invest in costly packaging.

The OCM symbol also violates numerous consensus standards, which are technical specifications issued by standards organizations like the National Institute of Standards and Technology, ASTM International and the International Organization for Standardization. They are developed in an open environment to ensure public safety and promote best practices through collaboration by expert volunteers in the public and private sectors. Standards organizations have flourished since the 19th century, and their standards apply to everything from airplanes to zippers.

The bedrock standard for safety signs (ISO 3864) defines a warning symbol as a black graphical element within a black-bordered yellow triangle. Alphanumeric characters are prohibited within the symbol, because marginalized individuals may lack literacy in specific languages, cultures, science and the Latin alphabet. Instead, text is placed adjacent to the pictorial warning symbol when additional information is needed.

Examples of ISO 3864 compliant symbols in use around the United States.

The CCB might be forgiven for overlooking symbol standards had they not known about a freely available cannabis product symbol that meets and exceeds all existing standards.

The International Intoxicating Cannabinoid Product Symbol (IICPS) was developed through collaboration between Doctors for Cannabis Regulation (DFCR) and ASTM International. Early last year, the IICPS became a consensus standard of its own (ASTM D8441) through a unanimous vote of more than 200 ASTM members—including scientists, consumers, cannabis regulators and industry stakeholders.

The IICPS communicates a clear public health message: “Caution with Cannabis.” It features simple elements optimized for printing on small packages and embossing directly onto the surface of cannabis products. The familiarity of the cannabis leaf ensures that the greatest number of people can correctly identify the contents of the package.

Curiously, one part of the OCM symbol was modeled on the IICPS, but poorly. It uses text within the triangle, which is non-compliant with ASTM D8441, prohibited by ISO 3864 and modified without permission of the designers of the IICPS.

The IICPS is the only cannabis product symbol that federal authorities are likely to consider for nationwide use. The National Technology Transfer and Advancement Act of 1995 requires federal agencies to adopt existing consensus standards in federal regulations.

Recognizing the importance of consensus standards, Montana was the first U.S. state to adopt the IICPS. New Jersey, Vermont and South Dakota followed suit, incorporating the IICPS design into their state symbols. Other states are considering adoption of the IICPS, but New York—the second most populous legalized state—isn’t one of them.

The IICPS for light and dark backgrounds, printed on a Montana package, and embossed on a Vermont edible.

Following CCB’s request for comment on the OCM symbol, a broad coalition of 24 organizations representing every major stakeholder in the cannabis space submitted and published a letter urging CCB to adopt the IICPS. It was a rare example of unity and shared interests among doctors, nurses, patients, clergy, industry trade groups, social justice advocates, veterans, cannabis regulators and drug policy experts. The signatories offered CCB alternative designs that use the IICPS and include all key elements from the OCM symbol, without any cost to CCB or New York taxpayers.

CCB ignored the unanimous recommendation of this august coalition of organizations. In a stubborn display of pride over common sense, they adopted one of the worst additions to a crowded field of ironically named “universal” state cannabis product symbols.

New Yorkers are stuck with the OCM symbol for now, but CCB’s rejection of low-hanging regulatory fruit offers two valuable lessons to other state regulators:

First, don’t reinvent the wheel. Utilize consensus standards whenever you can.

Second, adopt the IICPS standard—STM D8441. Otherwise, you will all but guarantee that your symbol will be abandoned when the U.S. adopts a national standard. Far worse, if your bespoke symbol creates public confusion, it will result in accidental cannabis ingestions by children and adults who fail to appreciate your misguided originality.

David L. Nathan, MD, DFAPA is a Princeton, New Jersey based psychiatrist, a clinical associate professor of psychiatry at Rutgers Robert Wood Johnson Medical School, the founder and past president of Doctors for Cannabis Regulation and a co-designer of the IICPS.

List of signatories to the January 2023 letter supporting adoption of the IICPS in New York State:

American Cannabis Nurses Association
Americans for Safe Access
American Trade Association for Cannabis and Hemp
Association for Cannabis Health Equity and Medicine
Cannabis Association of New York
Cannabis Regulators of Color Coalition
Clergy for a New Drug Policy
Doctors for Cannabis Regulation
Drug Policy Alliance
Global Alliance for Cannabis Commerce
Immigrant Defense Project
JustLeadershipUSA
JUSTÜS Foundation
Marijuana Policy Project
Minorities for Medical Marijuana
Minority Cannabis Business Association
National Cannabis Industry Association
National Organization for the Reform of Marijuana Laws
NYC Chapter of NORML
Patients Out of Time
Society of Cannabis Clinicians
Students for Sensible Drug Policy
Unified Legacy Operators Council
Veterans Cannabis Coalition

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