“Cherry Lemonade” was a proposed cannabis strain name denied approval by the Pennsylvania Department of Health (the department). The department may be engaging in improper rulemaking—relying on a labeling regulation to deny strain names it thinks are potentially attractive to children, too recreational, or inappropriate for the state’s medical marijuana program. However, the department seems to lack authority to deny strain names for these reasons. Further, after reviewing public records provided by the department in response to a Right-to-Know Law request, its denials appear inconsistent. For example, although it denied “Cherry Lemonade,” it approved “Cherry Dosi Do” and “The White Cherry.”

This article outlines what the department is doing, why its conduct may raise concerns given state rulemaking obligations, and how that could harm Pennsylvanians in the state’s medical marijuana program.

What Are Cannabis Strains?

Cannabis strains are versions of cannabis with distinct appearances, odors, and effects. Sativa and indica are examples of well-known cannabis strains. Particularly popular strains often become known by further name conventions, such as “OG Kush” or “Pineapple Express.” Consumers expect certain effects based on the strain name because strain names have become synonymous with the treatment of certain serious medical conditions.

Which Strain Names Are Being Denied Approval by the Department?

Based on a review of public records, and by way of example only, the department denied “Rainbow Cookies” and “Confetti” as potentially attractive to children. It rescinded prior approval of “Wedding Cake” for the same reason. The department deemed, “Lemon Hash Sour Diesel,” “Wakin’Bakin’,” and “Big Bud” as “too recreational” for the state’s medical marijuana program and denied them. It also rescinded approval of “Twice Baked” for this reason. Further, it classified the following strain names vaguely as “not appropriate” for the state’s medical program and denied them: “Afternoon Delight,” “Cosmic Banger,” “Hell in a Bucket” and “Lettuce.”

The Issues With These Denials

There are at least three issues with the department’s conduct. First, the department’s decisions appear inconsistent. Second, the department may lack authority to deny strain names under state rulemaking obligations. And third, its denials may restrict commercial speech.

Apparently Inconsistent Denials

The apparent inconsistency in the department’s denials can be seen in the department, by way of example, denying “Cherry Lemonade” but approving “Cherry Dosi Do” and “The White Cherry.” It also denied “Hades’ Sour Ice” but approved “Hades’ Sour Haze.” And it denied “Upside Down Cake” but approved “Bana Bred.” These apparent inconsistencies leave medical marijuana permit holders in the untenable position of guessing at what they should be using for product strain names.

How Do These Denials Implicate State Rulemaking Law?

Rulemaking in Pennsylvania happens in accordance with the Commonwealth Documents Law, 45 Pa. C. S. Sections 1101-1611. That law lists the proper procedure for rulemaking, including providing notice and reviewing comments on the proposed rule. See 45 Pa. C. S. Sections 1201 & 1202. An agency’s failure to comply with that procedure renders the regulation a nullity. See Transportaion Services v. Underground Storage Tank Indemnification Board, 67 A.3d 142, 154 (Pa. Cmmw. Ct. 2013). And even though some agency decisions—like interpretive rules that lack binding effect—do not need to adhere to the formal procedure for rulemaking, “if an interpretive rule or statement of policy functions as a regulation, then it will be nullified due to the agency’s failure to obey the processes applicable to the promulgation of a regulation.” See Medical Marijuana Access & Patient Safety v. Klinepeter, No. 58 M.D. 2022, p. 21 (Pa. Cmmw. Ct.) (citing Transp. Servs. Inc., 67 A.3d at 154).

The department’s denials potentially function as “regulations” because they seem to be binding. For example, as seen in a public record, the department denied a certain company’s proposed strain names and then wrote, “you may not use any denied strain names, nor ship any product you already have labeled with denied strain names to dispensaries, going forward.” If these denials are indeed binding, they would not seem to be interpretive rules that do not need to comply with formal rulemaking procedure.

Therefore, to support these denials, the department seems to either need to cite a regulation or statute providing it with the specific authority to deny strain names for these reasons, or show that it complied with formal rulemaking procedure.

The Cited Regulations

When the Department denies a strain name as potentially attractive to children, it has cited 28 Pa. Code Section 1151.34(e)(4). However, that regulation does not give the Department explicit broad jurisdiction over strain names. It is a packaging and labeling regulation and does not mention strain names at all. It reads:

Section 1151.34. Packaging and labeling of medical marijuana products. (e) Labeling by a grower/processor of any medical marijuana product may not bear: (4) Any cartoon, color scheme, image, graphic or feature that might make the package attractive to children.

The department’s apparent rationale under this regulation is that a strain name would appear on a product label and, thus, “might make the package attractive to children.” Compounding this issue, when the department denies names as “too recreational” or “not appropriate” for the state’s medical marijuana program, it cites to no authority at all.

The department has also denied strain names for being too similar to a trademarked product. For these denials, the department has cited a different subsection of the packaging and labeling regulation, 28 Pa. Code Section 1151.34(e)(1), which reads:

Section 1151.34. Packaging and labeling of medical marijuana products. (e) Labeling by a grower/processor of any medical marijuana product may not bear: (1) Any resemblance to the trademarked, characteristic or product-specialized packaging of any commercially available food or beverage product.

The rationale for these trademark-based denials seems to depend on a strain name that resembles a trademarked food or beverage product appearing on a product label. That makes sense when dealing with a trademark or special product packaging tied to an actual food or beverage. But, by way of example, the department has denied the proposed strain name “Gorilla Glue” as a “known trademark issue” despite that trademark not seeming to come within the scope of this regulation. Indeed, the department cited to no authority for its denial of “Gorilla Glue.” Therefore, unless the strain name resembles a trademarked food or beverage product, permit holders are left wondering when their name may be denied.

Commercial Speech

The department’s denials may also implicate commercial speech—especially when it denies names as “too recreational” or “not appropriate.” Because the department cites no authority and seems to exercise discretion when denying names for those reasons, its denials may have trouble satisfying the commercial speech test from Central Hudson Gas & Electric v. Public Service Commission of New York, 447 U.S. 557, 566 (1980) (establishing a four-part test to see whether restrictions on commercial speech are constitutional: whether the speech concerns lawful activity and is not misleading; and whether the government has a substantial interest in regulating the speech; then, if the answer to both of those is yes; whether the regulation directly advances the governmental interest; and whether the regulation is not more extensive than is necessary to serve that interest).

How Could the Department’s Conduct Affect Pennsylvanians?

The denials may prevent consumers from making informed decisions about which cannabis products to use when looking for a desired treatment. Certain strain names, like “OG Kush” and “Pineapple Express” are ubiquitous and associated with certain treatment effects. “OG Kush” often produces “a well-balanced head and body high, complemented by … intense euphoria and cerebral sensations [that can] leave you in a mellow, trance-like state.” (Findclearchoice). “Pineapple Express” provides “many cerebral, head-high effects that keep users feeling energetic and happy with a stimulating euphoria.” (Lightshade). The department has denied strain names that included the word “Kush.” And because the department seems to not consider the effects of the strain when it denies names, it forces companies to come up with alternative names that may not help inform patients about the effects of that strain and may cause patient confusion.

In Summary

The department seems to be denying proposed strain names without explicit authority to do so. If these decisions are binding, the department would need to comply with formal rulemaking procedures to have explicit authority for these denials. It has yet to do so.

Therefore, its current stance may have trouble satisfying state rulemaking obligations. Time will tell what will happen if the department’s denials are challenged. Until then, permit holders are left guessing on whether their strain names will be approved. After all, a strain name by any other name is just a rose.

Reprinted with permission from the May 18, 2023 issue of The Legal Intelligencer. (c) 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.