Fighting for rational cannabis regulation
“Unlabeled” trial-sized vials of Universal Cannabis Tonic
On Friday October 22, 2021, the OLCC released a public statement announcing the decision to fine Luminous Botanicals $100,000 for a labelling violation. The statement itself contains numerous falsehoods that portray Luminous Botanicals and its principles in an inaccurate and unflattering light. We would like to correct the record by pointing out where the OLCC’s statement diverges from the truth of what actually happened as determined in their own Final Order and provide additional context for our case. We hope that this background might illustrate why the agency chose to frame the narrative that our packaging caused a public safety issue when the factual detail of the Final Order reveals that we made a minor labeling error that endangered no one. We believe the agency pursued the maximum fine against Luminous Botanicals because we appealed their denial of our trial-sized vial packaging, challenging their absolute authority over the industry.
Long before the agency notified us that we were being investigated for a violation, we filed an appeal of their decision to deny the label approval for our trial-sized vials (shown in the image above), a package that had been approved twice before and had never before been a problem for retailers or consumers, despite tens of thousands of units being sold.
Our Universal Cannabis Tonic is carefully formulated for precise oral dosing. The larger bottles come with a graduated dropper making it easy to accurately measure a desired dose, but the tiny trial-sized vials at the center of this case don’t have any markings on them. The dose is measured out of the vial by eye, sighting the level of oil that remains in the vial after pouring out a partial amount. This process is straight forward and intuitive for consumers, but a label that wraps around the vial completely (called a flag label) interferes with the ability of the consumer to accurately measure their dose by obscuring the remaining oil level. A flag label was the only solution OLCC staff would accept.
The flag label solution prevents consumers from dosing accurately and thus introduces a public safety issue where there wasn’t one before. We engaged with agency staff to find a solution that would satisfy both the agency’s desire to label the glass vial and our desire to not interfere with being able to see the level of oil in the vial. When the agency refused all of our proposed solutions and would not acknowledge that the only solution they would accept would create a public safety concern, we exercised our due process rights to appeal the decision and asked for an administrative review hearing. Months later, the agency served us with a notice of violation and a $100k fine for selling product in unapproved packaging, and our original concern regarding the labelling denial was overwhelmed by the need to defend ourselves from a false narrative and a huge fine.
Perhaps it was a coincidence and not punishment for pursuing our appeal, but the allegation of violation effectively obscured our original concern enough that neither agency staff nor commissioners have ever acknowledged the issue we raised — that agency staff were inconsistent in their interpretation of the rules and unwilling to cooperate to find a solution that would serve both the agency and its licensee, instead insisting on unquestioning compliance with their authority.
Since founding our company in 2014, we have done our best to be responsible members of this new industry. Our 100% locally-owned company employs five people, offering living wages with company-paid benefits. We support sustainable local agriculture and were the first manufacturer in the country to become Sun+Earth Certified. We have been heavily involved in efforts to make the industry a safer, friendlier place, serving on multiple OLCC rules advisory committees and volunteering as members of the Oregon Cannabis Association.
It has been dispiriting to watch our regulatory agency attack legal craft businesses, rather than partnering with them to improve education and compliance. As this case has dragged on for years and drained our coffers, we keep waiting for some sign of real justice. We have filed an appeal of this ruling, and the legal process will play out for months to come. In the meantime, we hope consumers, other licensees, and political leaders will come together to demand accountability, justice, and change within the troubled OLCC.
The following is a correction of the errors in the OLCC’s public statement:
The OLCC statement begins by saying that Luminous Botanicals was fined for “deliberately sidestepping packaging and labeling rules,” yet page 47 of the Final Order confirms that the mistake we made was not intentional. In fact, we were unaware that we had made an unapproved change to the packaging until nearly 1.5 years after we had stopped selling product in that packaging. The two changes that we inadvertently made were to prematurely incorporate warning language from the new set of rules and to adjust our ingredient list to specify “cannabis flower” rather than “cannabis.”
Next, the statement says “OLCC staff determined that the item’s labels were not properly affixed and could fall off when used by a consumer. These unlabeled vials, with no markings indicating their contents to be marijuana, could inadvertently be used by an unsuspecting consumer, and thus posed a public safety issue.” The agency failed to prove this assertion at hearing, although agency staff admitted that they had received no complaints about the vials, despite tens of thousands of units being sold. Also, the Final Order finds unequivocally that this packaging concept without any kind of marking or label on the vial itself was approved by agency staff in 2017.
Continuing on, the quote from OLCC Executive Director Steve Marks conflates the issue at hand with an unfounded assertion that our products could have ended up on the black market. “Small vials of marijuana product don’t provide any distinction on whether or not the product is from the legal or illegal market, that’s what this was about.” Yet the violation and fine was decidedly not about an unlabeled vial, it was about minor changes that were unintentionally made to a previously approved label.
The OLCC’s statement continues with the obtuse claim that “the trial-sized vial of “Universal Cannabis Tonic” was labeled as having less than an ounce of the marijuana THC containing product.” In fact, each trial-sized vial contains only .03 fluid ounces of a product that contains, at most, 18 mg of THC, though two of the formulations included in this fine contain only 10 mg and 2 mg of THC per vial. The hypocrisy of asserting that an 18 mg vial of oil constitutes a public safety risk if it is separated from its label yet a 50 mg THC-infused chocolate bar does not is striking and points to the truth beyond the violation and fine - this was never about public safety, it was always about punishing us for challenging their authority.
From the OLCC statement, “Luminous Botanicals refused to make their labels compliant with OLCC packaging and labeling rules by properly labeling the thumb-sized vial.” Page 46 of the OLCC’s Final Order states that we would have had the right to continue to use our previously approved trial-sized vial labels, without any kind of marking or label on the vial itself, through March 31, 2019, the date when we stopped selling them, if the only change had been to update the product type. As far as we knew, the vials were properly labeled.
The agency then falsely depicts the behavior of their staff as generous and collaborative, “OLCC staff worked with Luminous Botanicals for more than a year to try to help the licensee devise a compatible solution.” OLCC staff did not engage in a good faith effort to find a solution that would address both their concerns and our concerns. OLCC staff rejected all solutions that we proposed, and refused to engage in an actual conversation to discuss how we might find common ground. The only solution they would accept was their solution - a flag label that we believe introduces a public safety issue.
And finally, the agency’s statement mentions that “the OLCC offered to settle the case for $30,000, instead of having to pay the maximum $100,000 penalty.” This is true. We declined the settlement because one of the stipulations was that we would have to drop the packaging appeal and administrative hearing related to our trial-sized vials. We didn’t want to be silenced when we had a legitimate concern to address. We also felt that it was simply wrong to pay the state $30,000 when we believed, and still believe, that we made a minor mistake that endangered no one.