New Mexico Register / Volume XXXIII, Issue 6 / March 22, 2022
This is an amendment to 16.8.3 NMAC
amending Sections 7, 8, and 12 effective 3/22/2022.
16.8.3.7 DEFINITIONS: [RESERVED] Unless otherwise defined in Title
16, Chapter 8, Part 1, terms used in Title 16, Chapter 8, have the same
meanings as set forth in the Cannabis Regulation Act and the licensing
authority under the Lynn and Erin Compassionate Use Act.
[16.8.3.7
NMAC – N, 03/22/2022]
16.8.3.8 ADVERTISING AND MARKETING:
A. Required Practices. The following practices are required in all advertising and marketing
activities:
(1) Responsible
persons. All advertisements and marketing for cannabis products shall
accurately and legibly identify all licensees or organizations who are
responsible for the proliferation of the advertisement or marketing activity.
(2) Reasonable expectation of audience
age. All advertisements in print and digital
communications shall only be placed in areas where at least seventy percent of
the audience is reasonably expected to be 21 years of age or older as
determined by reliable, current audience composition data. For the purposes of
this section, “reliable, current audience composition data” means data
regarding the age and location demographics of the audience viewing a
particular advertising or marketing medium. Immediately upon request, a
licensee shall provide to the division audience composition data as required in
this section for advertising or marketing placed by the licensee. If the
audience composition data for advertising or marketing provided by a licensee
does not comply with the requirements of this section, or the licensee fails to
provide audience composition data to the division upon request, the licensee
shall remove the advertising or marketing placement in question.
(3) Statements
and warnings: Any advertising or marketing materials created for viewing by
the public shall include the statement "Please Consume Responsibly"
in a conspicuous manner on the face of the advertisement and shall include the
following warnings that must be in type size at least ten percent of the
largest type used in the advertisement:
(a) for
use only by adults 21 and older;
(b) keep
out of reach of children;
(c) this
product is not approved by the FDA to treat, cure, or prevent any disease. FDA
has not evaluated this product for safety, effectiveness, and quality;
(d) do
not drive a motor vehicle or operate machinery while under the influence of
cannabis; and
(e) there
may be long term adverse health effects from consumption of cannabis, including
additional risks for women who are or may become pregnant or are breastfeeding.
B. Prohibited practices. Advertising and marketing activities of cannabis products shall not:
(1) occur
on radio, television or other broadcast media, internet pop-ups and mass
transit vehicles. The division shall not prohibit advertising and marketing
activities on these forums where:
(a) subscribers
of subscription-based radio, television or other broadcast media are 21 years
of age or older; or
(b) persons
21 years of age or older have solicited the advertising or marketing
activities.
(2) be
done in such a manner that is deemed to be is deceptive, misleading, false or
fraudulent, or that tends to deceive or create a misleading impression, whether
directly or by omission or ambiguity;
(3) [shall not] make unproven health benefit claims and any
health benefit claims must be supported by substantial evidence or substantial
clinical data;
(4) be
on billboards, posters, handbills or other visual media that are located or can
be viewed within 300 feet of a school, daycare center or church;
(5) contain
symbols or images, including a celebrity or celebrity likeness, that are
commonly used to market products to minors;
(6) use predatory marketing or advertising practices targeting minors; and
(7) be
designed to mimic any other product brand;
(8) promote the over consumption of cannabis or cannabis products; or
(9) depict the actual consumption of cannabis or cannabis products.
C. Branding. “Branding”
means promotion of a cannabis establishment’s brand through publicizing the cannabis
establishment’s name, logo, or distinct design feature of the brand.
(1) Branding shall not be designed to be appealing to a
child and shall not contain:
(a) cartoons;
(b) a design, brand or name that
resembles a non-cannabis consumer product of the type that is typically
marketed to minors;
(c) contain symbols or images, including
a celebrity or celebrity likeness, that are commonly used to market products to
minors.
(2) Branding
is not considered a marketing or advertising activity.
(3) Branding
is allowed without the required warnings and statements for advertising and
marketing of cannabis establishments.
[16.8.3.8 NMAC – N, 04/01/2022; A, 03/22/2022]
16.8.3.12 CANNABIS FINISHED PRODUCT PACKAGING:
A. Unless
otherwise specified, edible or topical cannabis finished products shall meet
the following minimum packaging requirements:
(1) containers used for edible
cannabis products or edible cannabis finished products shall be food-grade or
GRAS and must not impart any toxic or deleterious substance to the packaged
product;
(2) containers used for topical cannabis
products and topical cannabis finished products must be suitable for the intended
purpose and must not impart any toxic or deleterious substance to the packaged
product;
(3) unless otherwise provided,
containers shall be child-resistant. If the product is multiple use, or
contains multiple servings, it shall also be packaged in a container that is
resealable and continually child-resistant;
(4) cannabis finished products that
contain only cannabis flower must be packaged in resealable containers and are
not subject to the child resistant container requirement;
(5) containers shall be compostable and
recyclable, or made from recycled materials;
(6) edible cannabis finished products packaged
for commercial sale shall not exceed 10 milligrams of Total THC per serving,
or 100 milligrams of Total THC per container;
(7) edible cannabis finished products
packaged for qualified patients, qualified caregivers and reciprocal
participants as defined by the Lynn and Erin Compassionate Use Act shall be
identified for medical use only and shall not exceed 50 milligrams of Total THC
per serving;
[(7)] (8) single serving edible cannabis finished
products that are placed into a child resistant container may be bundled into
an exit package;
[(8)] (9) edible cannabis finished products containing
multiple servings in a single container shall:
(a) when in in solid form, be:
(i) easily separable in order to allow
an average person 21 years of age or older to physically separate, with minimal
effort, individual servings of the product; and
(ii) easily and permanently scored to
identify individual servings;
(b) be packaged in a single serving
size; and
(c) be marked, stamped, or otherwise
imprinted with a logo designed and provided by the division that notifies a
reasonable person that the product contains cannabis that is no smaller than
1/2 inch by 1/2 inch for each single serving contained in a multi-serving
package.
[(9)] (10) Unless
as otherwise specified in Paragraph (10) of this subsection, liquid cannabis
finished products shall be single-serving only.
[(10)] (11) Each liquid cannabis finished
product that is a multiple-serving edible cannabis finished product shall be:
(a) packaged in a structure that uses a
single mechanism to achieve both child-resistant properties and accurate
pouring measurement of each liquid serving in increments; and
(b) the measurement component is within
the child-resistant cap or closure of the bottle and is not a separate
component.
[(11)] (12) A cannabis manufacturer shall maintain a copy
of the certificate showing that each child-resistant container into which
edible or topical cannabis finished product is placed is child-resistant and
complies with the requirements of 16 C.F.R. 1700.15 and 16 C.F.R. 1700.20;
[(12)] (13) Packaging containers shall not be
designed to be appealing to a child and shall not use words that refer to
products that are commonly associated with minors or marketed by minors,
including use of the word(s) “candy” or “candies” on the label of any
container.
[(13)] (14) Once
any remaining cannabis has been removed and destroyed pursuant to these rules,
a cannabis establishment may reuse containers subject to the following
requirements and restrictions:
(a) the
containers have been sanitized and disinfected either by a cannabis
establishment or by a third-party to ensure that they do not contain any
harmful residue or contaminants, and
(b) if
child resistant, the containers can be reused with new child resistant
packaging that complies with 16 C.F.R. 1700.15 and 16 C.F.R. 1700.20; or if new
child resistant packaging is not being used, based on a visual inspection, the
existing child-resistant packaging appears to be in good working order and does
not appear to pose a risk of unintended exposure or ingestion of cannabis. The
visual inspection must ensure such containers are not brittle or have chips,
cracks, or other imperfections that could compromise the child-resistant
properties of the container or otherwise pose a threat of harm to a patient or
consumer.
(15) Packaging for edible cannabis finished products packaged pursuant to the
Lynn and Erin Compassionate Use Act that was purchased prior
to January 11, 2022 may be used by a licensee until October 1, 2022.
[16.8.3.12 NMAC - N, 04/01/2022; A,
03/22/2022]