Massachusetts has ultra-strict marijuana packaging rules. So why wasn’t my infused ice cream childproof?

Cloud Creamery snafu exposes inconsistency in state regulations

Cups of marijuana-infused vanilla ice cream and mango sorbet sold by Massachusetts company Plant Jam under the Cloud Creamery brand.Dan Adams

Despite the calming effects of the substance it’s charged with regulating, the Massachusetts Cannabis Control Commission doesn’t exactly have a reputation as a relaxed agency: Just ask any marijuana business that has navigated the gauntlet of strict application requirements, or a consumer who has broken a fingernail trying to free a low-dose edible from child-resistant packaging that could repel a starving grizzly bear.

Even cannabis flower — which can’t get you high unless it’s smoked, vaped, or cooked — must be sold in child-resistant containers. Of course, anyone capable of rolling a joint or baking some pot brownies is, presumably, equally capable of squeezing or pulling open a childproof flower container. But hey, state law is state law.

Or is it?

A few weeks back, I stopped into Chelsea marijuana store Western Front to grab a couple containers of Cloud Creamery’s THC-infused ice cream, the first frozen product to hit dispensary shelves in Massachusetts. Having written about the company earlier this year, I figured I ought to actually try the stuff.

When I returned home and unpacked my purchase from its stapled paper bag, however, I did a double-take: The cups appeared to have no child-resistant features, with the lids secured only by the same sort of brittle plastic ring you might find on a pint of Ben & Jerry’s. Had the commission suddenly gone soft-serve?

Nope. Turns out, Western Front should have placed my ice cream cups in a thick child-resistant Mylar pouch at the register, as marijuana retailers must do with all products that don’t come from the manufacturer already in a child-resistant container.

Cassandra Leetz, the store’s general manager, explained that a “small mishap” had resulted in Western Front selling numerous Cloud Creamery products without child-resistant bags for about a week after sales began in mid-June.

“That has been rectified,” Leetze said, explaining that the shop now places Cloud Creamery’s half-pints in a black pouch with a child-resistant “zip” seal. Other retailers that carry the company’s ice cream said they are also using the required child-resistant “exit packaging.”

That’s good to hear, as Leetz and other managers whose shops carry the ice cream all agreed the product has been a smash hit with shoppers this summer.

Realistically, though, will parents actually keep their infused ice cream in an inconveniently bulky Mylar bag when they place it in the kitchen freezer? Or store it in a separate freezer to which the kids don’t have access? Even Leetz has her doubts about that.

“The average [marijuana-]consuming adult doesn’t have a secret freezer for these sorts of things,” she conceded, adding that her company was surprised Cloud Creamery’s products didn’t come in childproof containers from the start.

Under state regulations, multi-dose edibles must come in resealable, child-resistant packages, with permanent scores or grooves separating each 5-milligram dose of THC. Non-solid products such ice cream and sodas can only be sold in single-serving containers.

While some may grumble that 5 milligrams is too little THC to serve as the state’s standard dose, the commission’s overall approach here seems reasonable enough. After all, on a hot day, is someone really going to sip just 5 percent of a can of seltzer containing 100 milligrams of THC, or spoon out only a couple tiny bites of potent infused ice cream? The risk of an inexperienced consumer downing the whole thing and getting far higher than expected seems substantial in those scenarios, akin to a beer that somehow barely tastes like alcohol yet gets people uncomfortably sloshed after one bottle.

Plant Jam, the company behind the Cloud Creamery brand, initially proposed selling its ice cream in larger containers with resealable, child-resistant lids. But it appears regulators were skeptical of its plan to include multiple servings in a single cup: The commission rejected the firm’s requests to delineate individual, 5-milligram doses with lines on the side of the package or by providing a measured scoop, forcing founder David Yusefzadeh to instead release his ice cream in the individually-sized half-pint cups I bought in Chelsea.

Yusefzadeh declined to comment; earlier this year, he complained publicly that the commission had taken an unreasonably long time to approve his application, and said regulators refused to answer his questions about packaging the first-of-its-kind-in-Massachusetts product beyond summarily denying his requests for exemptions from the rules.

That may be so, and perhaps the commission should have taken a more collaborative approach here (though it would be asking a lot to expect that the agency hand-hold hundreds of different license applicants as they work to design compliant products).

But it still leaves me wondering why Cloud Creamery ditched the child-resistant packaging altogether when it switched from multi- to single-serving cups, effectively passing the safety buck to retailers such as Western Front, which must now repackage frozen products at the register.

It also leaves me wondering what happened to our famously uptight commission. Cannabis officials publicly flagged this very product as a possible risk to kids, yet seem content with the likelihood that a sweet, frozen, infused treat — largely indistinguishable by sight or taste from regular ice cream — will end up in the family freezer, removed from its awkward, inflexible, child-resistant bag.

In a statement, a spokeswoman for the agency said it “continues to prioritize public health and safety in the review of all license applications and inspection of all marijuana establishments,” and pointed to its public awareness campaign around the need to store and consume cannabis responsibly. She also noted that commission staff “initially identified issues regarding this license applicant’s compliance with... packaging regulations, and specifically raised public health and safety concerns,” but approved the permit once Cloud Creamery “resolved these issues.”

Now, it’s important to be clear-eyed about the actual risk here: With just 5 milligrams of THC in the entire cup, even a child who scarfs down every bite of a Cloud Creamery product will be perfectly fine (if slightly disoriented) after a few hours. There’s no need to reinstate pot prohibition, nor call emergency room doctors back from their summer vacations to handle a coming tidal wave of stoned tots.

It’s also important to note that state law — not to mention common sense — puts the onus firmly on parents to store their marijuana responsibly, and ensure their kids (or even unaware adults) don’t accidentally consume it.

But common sense also dictates that the degree of child-resistance should scale according to the actual risk posed by a particular marijuana product. And unless the youths of Massachusetts spent the pandemic practicing their joint-rolling skills, it’s simply absurd that us adults must struggle to open finicky child-resistant pouches of flower, yet a sleepy 4-year-old could effortlessly tear into a cup of Cloud Creamery ice cream. Even a simple push-and-turn lid like those found on pill bottles would probably suffice.

Maybe the commission will eventually reconsider whether edibles manufacturers should really be allowed to skimp on child-resistant packages and instead force retail workers to pick up their slack one transaction at a time, a situation that inherently increases the risk of products being sold without child-resistant packaging.

Until then? I won’t be clutching my pearls too tightly. I’ll just be out here with the bears, pawing uselessly at my adult-resistant bag of legal weed. Anyone know a guy who can open these things?