N.Y. Comp. Codes R. & Regs. tit. 9 § 128.1

Current through Register Vol. 46, No. 25, June 18, 2024

Section 128.1 - Definitions

For purposes of Part 128 and Part 129 of this Title, the following terms shall have the following meanings:

(a)Advertising means the process of disseminating advertisements in any manner or by any means.

(b)Advertisement means any publication, video, use of a brand representative, or any other form of media for the purpose of causing, directly or indirectly, the purchase or use of a brand or cannabis product including, but not limited to: websites, social media, print media, broadcast media, TV, radio, streaming media, out of home media, outdoor signs, merchandise, event sponsorship, street art, murals, and digital communications.

(c) Attractive to individuals under twenty-one means labeling, packaging, advertising and marketing that is pleasing or appealing to persons under the age of twenty-one by using or including, among other things:

(1) Cartoons;

(2) Bubble-type or other cartoon-like font;

(3) Bright colors that are "neon" in appearance;

(4) Similarities to products, or words that refer to products that are commonly associated with, or marketed in a manner so as to be attractive to, individuals under twenty-one, including but not limited to, any imitation of food, candy, soda, drinks, cookies, or cereal (with the exception of using the name of a cultivar or licensee, including the licensee's doing business as name), in labeling, packaging, advertising, or marketing;

(5) Terms "candy" or "candies" or variants in spelling such as "kandy" or "kandeez" (with the exception of cultivar names or a licensee's name, entity name, or doing business as name);

(6) Symbols, images, characters, public figures, phrases, toys, or games that are commonly used to market products to individuals under the age of twenty-one; or

(7) Images of individuals who could reasonably appear to be under the age of twenty-one, unless the individual is at least twenty-five years of age.

(d)Board means the Cannabis Control Board of New York State as established by Article 2 of the Cannabis Law.

(e)Brand or Branding means the name, entity name, or doing business as name, registered trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other identifiable marker that identifies one adult-use cannabis licensee or adult-use cannabis licensee's cannabis products as distinct from those cannabis products of other adult-use cannabis licensees and is used in, among other things, any packaging, labeling, advertising or marketing.

(f)Certificate of analysis means a certified report from a cannabis laboratory that meets the requirements of Part 130 of this Title.

(g)Child-resistant means special packaging for sale to a consumer that is:

(1) designed or constructed to be significantly difficult for children under five years of age to open and not difficult for adults to use properly as defined by Title 16, as it relates to Commercial Practices, of the Codes of Federal Regulations section 1700.15 for Poison Prevention Packaging Standards and Title 16, as it relates to Commercial Practices, of the Codes of Federal Regulations section 1700.20 for Testing Procedure for Special Packaging, as amended from time to time, and

(2) follows the packaging standards set forth in Title 16, as it relates to Commercial Practices, of the Codes of Federal Regulations Section 1700.15 and the testing procedure set forth in Title 16, as it relates to Commercial Practices, of the Codes of Federal Regulations section 1700.20.

(h)Date of expiration means the date prior to which an unopened cannabis product meets applicable standards of identity, potency, and quality at the time of use, as determined by appropriate data, subject to any storage conditions stated on the labeling.

(i)Edible means a product, containing either cannabis or concentrated cannabis and other ingredients, intended for use or consumption through ingestion, including sublingual or oral absorption.

(j)Exit package means a receptacle into which cannabis products within a retail package are placed at the retail point of sale. The exit package is optional.

(k)Health claim means any claim on the retail package or marketing layer or in the marketing or advertising of a cannabis product, that expressly or by implication, including, but not limited to, by "third party" references, written statements (e.g., a brand name including a term such as "heart"), symbols (e.g., a heart symbol), or branding, characterizes the relationship of any cannabis product to a disease or health-related condition or symptom. Implied health claims include those statements, symbols, branding, advertisements, or other forms of communication that suggest, within the context in which they are presented, that a relationship exists between the presence or level of a substance in the cannabis product to a disease or health-related condition or symptom.

(l)Licensee means an individual or an entity who has been granted a license for any activity under Article 4 of the Cannabis Law.

(m) Lot unique identifier or lot number or bar code means any distinctive combination of letters, numbers, or symbols, or any combination of them, from which the complete history of cultivation, manufacturing, processing, testing, custody, distribution or recall of a lot of cannabis or a cannabis product can be determined.

(n)Marketing means the process of identifying consumers' needs and addressing such needs through advertisements.

(o)Marketing layer means packaging in addition to the retail packaging that is the outermost layer visible to the consumer at the point of sale. The marketing layer is optional, but if used it shall be labeled according to the requirements in this Part.

(p)Non-consumer package means any container or wrapping used solely for the transport of cannabis or cannabis products in bulk between licensees and, particularly, a package intended solely for wholesale distribution and not final retail sale.

(q)Office means the Office of Cannabis Management as established by Article 2 of the Cannabis Law.

(r)Phytocannabinoid means any of the chemical compounds, excluding terpenes or any other compounds set forth by the Office, that are the active principles of cannabis sativa, including, but not limited to, tetrahydrocannabinol (THC) and cannabidiol (CBD), and does not include synthetic cannabinoids as that term is defined in subdivision (g) of schedule I of section thirty-three hundred six of the Public Health Law.

(s)Plastic means a synthetic material that is made from linking monomers through a chemical reaction to create a polymer chain that can be molded or extruded at high heat into various solid forms that retain their defined shapes during their life cycle and after disposal.

(t)Post-consumer recycled content means new material produced using material resulting from the recovery, separation, collection and reprocessing of material that would otherwise be disposed of or processed as waste and that was originally sold for consumption. It does not include post-industrial material, or material generated by means of combustion, incineration, pyrolysis, gasification, solvolysis, chemical recycling, and any high-heat or conversion process.

(u)Principal packaging display panel means the panel of the retail package or the marketing layer that the processor intends to be displayed at retail.

(v)Resealable means a package that maintains its child-resistant effectiveness, as well as preserving the integrity of cannabis products contained within, for multiple servings.

(w)Retail package means a sealed, hard or soft-bodied, child-resistant receptacle in which the cannabis product shall be placed before retail sale. Retail package does not mean:

(1) inner wrapping or lining;

(2) an exit package; or

(3) a non-consumer package used to transfer cannabis from one licensee to another.

(x)Reusable packaging is packaging made from durable material that is designed to be used repeatedly for a number of use cycles, is safe for washing and sanitizing, and is capable of being recycled at the end of use, with the exception of ceramic products.

(y)Special branding material means a visual or audio element which shall only be for use in packaging, labeling, marketing, and advertising by certain licensees or on certain cannabis products including, but not limited to, a designation that a licensee is a social and economic equity licensee. All special branding materials and the brands or products authorized to use such materials shall be defined, made available, and designated for use in guidance.

(z)Tamper-evident means, with respect to a device or process, bearing a seal, a label or a marking that makes unauthorized access to or tampering with a package, product or container easily detectable.

(aa)Total THC means the sum of the percentage by weight or volume measurement of tetrahydrocannabinolic acid multiplied by 0.877, plus, the percentage by weight or volume measurement of THC.

(ab)Use by date means the date prior to which an opened cannabis product meets applicable standards of identity, potency, and quality at the time of use, as determined by appropriate data , subject to any storage conditions stated on the labeling.

(ac)Universal symbol means an image developed by the Office, and made available to licensees, that indicates that a retail package or product contains cannabis.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 128.1

Adopted New York State Register March 22, 2023/Volume XLV, Issue 12, eff. 3/22/2023