CHAPTER 44:90:10
PACKAGING, LABELING, AND ADVERTISING
Section
44:90:10:01 Packaging for retail sale -- General requirements.
44:90:10:01.01 Packaging for transfer or sale -- General requirements.
44:90:10:02 Packaging of cannabis flower or trim or inhalable cannabis products for retail sale.
44:90:10:03 Packaging of edible cannabis products for retail sale -- Tinctures, oils, and beverages excluded.
44:90:10:04 Packaging of cannabis tinctures and oils for retail sale.
44:90:10:05 Packaging of cannabis beverages for retail sale.
44:90:10:06 Packaging of topical cannabis products for retail sale.
44:90:10:07 Labeling required.
44:90:10:08 Format of labeling -- Font size -- Multiple labels.
44:90:10:09 Labeling claims -- Results of testing.
44:90:10:10 Expected effects -- Time to take effect -- Duration of effect.
44:90:10:11 Ingredients -- Allergen warnings.
44:90:10:12 Contents -- Net weight or volume -- Nutritional information.
44:90:10:12.01 Required warnings -- Indication that edible product contains cannabis -- Side effects -- Legal status of cannabis.
44:90:10:13 Identifying information -- Establishment identification number -- Batch -- Dates.
44:90:10:14 Labeling prohibitions.
44:90:10:14.01 Prohibited forms of advertising.
44:90:10:15 Target audience -- Establishments and adult cardholders only -- Prohibition on advertising to practitioners.
44:90:10:16 Advertising on websites, social media and mobile applications.
44:90:10:17 Prohibited content -- Advertisements.
44:90:10:18 Required information -- Advertisements.
44:90:10:19 Nonconforming advertising.
44:90:10:01. Packaging for retail sale -- General requirements. A dispensary shall transfer any cannabis or cannabis products to the patient or designated caregiver in packaging that is:
(1) Child-resistant in compliance with 16 C.F.R. § 1700.15, in effect on July 21, 1995;
(2) Tamper-evident, using a sealing method that provides clear, lasting evidence that the package has previously been opened;
(3) Resealable, except for single-serving cannabis products; and
(4) Opaque and does not allow the product to be seen without opening the packaging.
Unless otherwise specified by this article, the packaging requirement may be met by the container provided by either the cultivation facility or cannabis product manufacturing facility or by exit packaging supplied by the dispensary at the time of sale.
Source: 48 SDR 40, effective October 5, 2021; 50 SDR 62, effective November 27, 2023.
General Authority: SDCL 34-20G-72(4)(j).
Law Implemented: SDCL 34-20G-72(4)(j).
44:90:10:01.01. Packaging for transfer or sale -- General requirements. All cannabis or cannabis products shall be packaged for transfer or sale in containers that:
(1) Are fully enclosable;
(2) Are tamper-proof;
(3) Are resealable;
(4) Protect the packaged item from contamination;
(5) Do not impart any toxic or deleterious substance to the packaged item; and
(6) Except for bulk sale of flower or transfer thereof, are packaged in a child-resistant container that is ready for sale to the patient or designated caregiver.
Shipping containers of flower are limited to ten pounds or less.
Source: 48 SDR 54, effective November 15, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:02. Packaging of cannabis flower or trim or inhalable cannabis products for retail sale. Cannabis flower or trim or an inhalable cannabis product shall be transferred by a dispensary in a container that is fully enclosed on all sides, as follows:
(1) If the container is soft-sided, it must be four mil or greater in thickness; or
(2) If the container has rigid sides, it must have a lid or enclosure that can be placed tightly and securely on the container.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:03. Packaging of edible cannabis products for retail sale -- Tinctures, oils, and beverages excluded. Edible cannabis products shall be packaged as follows:
(1) Single-serving edible cannabis products, other than tinctures, oils, and beverages:
(a) Shall be placed into a child-resistant container that may or may not be resealable; and
(b) May be bundled into a larger marketing layer so long as the total amount of active THC per marketing layer does not exceed 100 milligrams.
(2) Multiple-serving edible cannabis products, other than tinctures, oils, and beverages:
(a) Shall be packaged either in a resealable container or with individual servings heat-sealed into packaging made of plastic four mil or greater in thickness with no easy-open tab, dimple, corner, or flap;
(b) Shall contain 100 milligrams or less of total THC per multiple-serving container; and
(c) Shall clearly indicate the size of a serving if the edible product is not in a form that indicates a serving.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:04. Packaging of cannabis tinctures and oils for retail sale. Cannabis tinctures or oils shall be packaged:
(1) In a glass or plastic vial or dosage syringe, either:
(a) With a resealable child-resistant cap; or
(b) With a resealable cap and enclosed in a child-resistant, soft-sided container made of plastic that is four mil or greater in thickness and heat-sealed; and
(2) With an indication of individual servings, either:
(a) By dividing cannabis oil into individual gelatin capsules; or
(b) By including with the cannabis tincture or oil a measuring device such as a dosing syringe, measuring cap, or dropper. Hash marks on the bottle or package do not qualify as a measuring device.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:05. Packaging of cannabis beverages for retail sale. Cannabis beverages shall be packaged as follows:
(1) Single-serving cannabis beverages that do not contain more than ten milligrams of THC must be packaged in:
(a) A child-resistant container;
(b) A metal can with a stay tab mechanism opening; or
(c) A glass bottle with a cork or metal crown style bottle cap;
(2) Multiple-serving cannabis beverages that contain more than ten milligrams of THC but no more than 100 milligrams of THC must:
(a) Be packaged in a child-resistant container that has a resealing cap or closure; and
(b) Include a measuring device such as a measuring cap or dropper. Hash marks on the bottle or package do not qualify as a measuring device.
Cannabis beverages packaged according to this section may be bundled into a larger marketing layer so long as the total amount of THC per marketing layer does not exceed 100 milligrams.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:06. Packaging of topical cannabis products for retail sale. Ointments, creams, and lotions must be packaged in a child-resistant container that has a resealing cap or closure compliant with 16 C.F.R. part 1700.15 (July 21, 1995). Dry bath soaks and transdermal patches must be packaged in a plastic that is four mil or greater in thickness to prevent unintended access to and ingestion by children or pets and is heat-sealed with no easy-open tab, dimple, corner, or flap.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:07. Labeling required. All cannabis and cannabis products must be labeled in accordance with this chapter before sale or transfer to the patient or designated caregiver.
Prior to transferring cannabis to a dispensary, a cultivation facility shall label the marketing layer of each container. Prior to transferring cannabis products to a dispensary, a cannabis product manufacturing facility shall label the marketing layer of each container.
Unless otherwise specified, all required information shall be printed directly on the marketing layer of the cannabis or cannabis product or printed on a sticker attached to the marketing layer of the cannabis or cannabis product.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j),(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:08. Format of labeling -- Font size -- Multiple labels. All required information must be printed clearly in English on the label in type no smaller than six-point font (1/12 inch). An establishment may affix an extendable, accordion-style label, layered label, or multiple labels to the marketing layer if none of the required information is obstructed and the label can be easily identified by a patient or designated caregiver as containing important information.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:09. Labeling claims -- Results of testing. The results of any testing mandated by the department must be included on the label of any cannabis or cannabis product. The label must state the THC content in milligrams of total THC and as a percentage of the product’s weight. No label may contain claims regarding cannabidiol content or the absence of microbials, metals, solvents, or pesticides except to list the results of analytical tests performed by a registered cannabis testing facility.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:10. Expected effects -- Time to take effect -- Duration of effect. The label of any cannabis or cannabis product must indicate:
(1) The length of time, in hours or minutes, that it may take the patient to feel effects; and
(2) The length of time the patient should expect the effects to last.
The estimated time to take effect and duration of effect shall be based on the best estimate of the establishment printing the label. The label on any edible product, except an ethanol-based tincture, must additionally contain the following warning: Effects of this product may not be felt for up to four hours.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(7)(a).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:11. Ingredients -- Allergen warnings. The label of any cannabis or cannabis product must identify any pesticides used in cultivation. The label of any cannabis product must list all ingredients and, if applicable, gases, solvents, or other chemicals used in extraction. The label of any edible cannabis product must identify any major allergens contained in the product in accordance with 21 U.S.C. § 321(qq) (April 23, 2021), including milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(7)(b).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:12. Contents -- Net weight or volume -- Nutritional information. The label of any cannabis or cannabis product must:
(1) Include a statement of net contents identifying the net weight or volume of the cannabis or cannabis product, expressed:
(a) If a solid, in both ounces and grams or milligrams; or
(b) If a liquid or colloid, in both fluid ounces and milliliters;
(2) State the equivalent cannabis weight, calculated according to the equivalent cannabis weight table in § 44:90:02:16;
(3) For any edible cannabis product, except tinctures, oils, and capsules:
(a) Identify the size of a serving of delta-9 tetrahydracannabinol (THC) expressed in ounces and grams or milligrams, fluid ounces or milliliters, or number of pieces, and the number of servings per marketing layer;
(b) Include a nutritional fact panel in accordance with 21 C.F.R. § 101.9, in effect on August 29, 2016; and
(c) Include a product expiration date, upon which the edible cannabis product will no longer be fit for consumption, or a use-by date, upon which the edible cannabis product will no longer be optimally fresh;
(4) For tinctures, oils, and capsules, contain the size of one or more dosages, expressed in milliliters, number of drops, or number of capsules, along with the amount of tetrahydrocannabinol, in milligrams, in each dosage identified; and
(5) For vaporizer products and topical cannabis products, the weight of concentrated cannabis used to manufacture the product in milligrams or grams.
Once affixed to a container containing an edible cannabis product and any marketing layer, an establishment may not alter the expiration or use-by date label or affix a new label with a later expiration or use-by date.
Source: 48 SDR 40, effective October 5, 2021; 50 SDR 62, effective November 27, 2023.
General Authority: SDCL 34-20G-72(6).
Law Implemented: SDCL 34-20G-72(6).
44:90:10:12.01. Required warnings -- Indication that product contains cannabis -- Side effects -- Legal status of cannabis. The department shall design a standard symbol that indicates an item contains cannabis or cannabis extract that shall be used by all registered establishments. This standard symbol must appear on the front or most predominantly displayed area of the marketing layer of an edible cannabis product, no smaller than 1/2 inch by 1/2 inch.
Labels must contain the following warning statements in no smaller than six-point font:
(1) For all cannabis and cannabis products:
(a) Contains cannabis. For medical use by qualifying patients only. There may be health risks associated with the use of this product. There may be additional health risks associated with the use of this product for women who are pregnant, breastfeeding, or planning on becoming pregnant. Do not drive a motor vehicle or operate heavy machinery while using this product.;
(b) Cannabis has a high potential for abuse. This product has not been approved by the United States Food and Drug Administration for preventing or treating any condition or disease process.;
(2) For all cannabis flower and trim, including pre-rolled cannabis cigarettes: Not for retail sale to persons under 21 years of age.; and
(3) For all inhalable cannabis products: Possession by persons under 21 years old is illegal.
Source: 48 SDR 54, effective November 15, 2021.
General Authority: SDCL 34-20G-72(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:13. Identifying information -- Establishment identification number -- Batch -- Dates. The container or exit packaging for any cannabis or cannabis product sold by a dispensary must identify:
(1) The registration number of any cultivation facility, cannabis product manufacturing facility, or dispensary involved in the cultivation, processing, or sale of the item;
(2) Batch numbers;
(3) Cultivation date of cannabis flower or trim; and
(4) Production date of cannabis products.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(j),(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:14. Labeling prohibitions. No label may:
(1) Include representations as to cannabinoid content or to the absence of pesticides, mold, or other contaminants, other than to provide the results of analysis performed by a cannabis testing facility certified in accordance with this article;
(2) Make claims regarding health or physical benefits to the consumer;
(3) Include any false or misleading statements;
(4) Obscure identifying information or warning statements;
(5) Use any trademark without authorization;
(6) Depict a human, animal, creature, vehicle, fruit, cartoon character, toy, emoji, or other artwork likely or intended to appeal to anyone under 21 years of age;
(7) Include the word “candy” or “candies”; or
(8) Refer to any item typically marketed to persons under 21 years of age.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(7).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:14.01. Prohibited forms of advertising. Unless and until the United States Drug Enforcement Administration removes marijuana or cannabis as a Schedule I controlled substance, no establishment may advertise:
(1) On a sign or billboard, except that a dispensary may advertise on signs on its own premises;
(2) By distributing handbills in public areas or on publicly owned property;
(3) Through direct mail, phone, text, or email without verifying the recipient is a cardholder or medical cannabis establishment and offering a permanent opt-out feature;
(4) Through publication, except that a dispensary may advertise on publications within its own premises;
(5) Through radio, television, and other media; or
(6) Through a practitioner or health care facility, by placing advertising material at a practitioner’s office or health care facility, or by targeting the practitioner’s or health care facility’s patients through direct mail, phone, text, or email.
Source: 48 SDR 54, effective November 15, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:15. Target audience -- Establishments and adult cardholders only -- Prohibition on advertising to practitioners. Advertisements must be targeted as directly as possible to other establishments, cardholders who are 21 years of age or older, and readers of medical publications. Advertisements may not target:
(1) Non-cardholders, including:
(a) Suggesting a medical evaluation; or
(b) Interacting with the public at events sponsored by the establishment;
(2) Anyone under the age of 21, including:
(a) Depicting anyone under 21 years of age; or
(b) Using cartoons, toys, or other products or images commonly associated with or marketed to individuals under 21 years of age; or
(3) Practitioners or health care facilities, other than advertising in medical publications.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:16. Advertising on websites, social media, and mobile applications. Any advertising on websites, social media, or mobile applications must include:
(1) A verification that the recipient is not an age-restricted cardholder; and
(2) A permanent opt-out feature.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:17. Prohibited content -- Advertisements. No advertisement for a medical cannabis establishment may:
(1) Make deceptive, false or misleading statements;
(2) Make claims related to potency beyond listing the cannabinoid content of the cannabis or cannabis product advertised, as verified by a testing facility;
(3) Depict consumption of cannabis or cannabis products;
(4) Depict pregnancy, breastfeeding, or operating a motorized vehicle, boat or machinery;
(5) Depict or refer to candy or a specific type of candy;
(6) Use a trademark associated with a non-cannabis product;
(7) Use a parody or other use that has similarity to the original;
(8) Encourage the transportation of cannabis across state lines or otherwise encourage illegal activity;
(9) Assert that cannabis is safe because it is regulated by the department, tested by a testing facility, or otherwise endorsed by any government agency;
(10) Make claims that cannabis has curative or therapeutic effects;
(11) Claim any health or physical benefits; or
(12) Encourage excessive or rapid consumption.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:18. Required information -- Advertisements. Any advertisement must contain the following information:
(1) A statement: For medical use by qualifying patients only.; and
(2) The medical cannabis establishment identification number of the establishment responsible for the advertisement.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5).
44:90:10:19. Nonconforming advertising. Any nonconforming advertising is a violation of this article and SDCL chapter 34-20G.
(1) Upon notification by the department, the establishment shall cease the nonconforming advertisements and remove any nonconforming advertising from websites, social media, mobile applications, or signs.
(2) Failure to cease or remove the advertising within 48 hours is a serious and knowing violation of this article and SDCL chapter 34-20G.
Source: 48 SDR 40, effective October 5, 2021.
General Authority: SDCL 34-20G-72(5)(i).
Law Implemented: SDCL 34-20G-72(5),34-20G-80.
