With the restrictive rules on hemp and hemp products changing in several states in the US, California appears to have taken an entirely different approach. In most states, products made from cannabis are not allowed, but CBD oil derived from industrial hemp is available. Unlike these states, the state of California has banned hemp-derived CBD oil, as it is not regulated.
The official statement of the ban came from a Q&A memo published by the Department of Public Health in California in the attempt to clarify its stance on the unclear regulations on CBD. It features a confirmation that all CBD derived from hemp is banned from being sold or produced within the state since FDA considers it illegal.
The news of the ban came as a great surprise to the legal cannabis industry in California as many retailers have CBD products made from hemp on their shelves. According to the memo, the CBD products are not approved as a dietary supplement, food, food additive or food ingredient until FDA makes a ruling, or there is a determination on whether CBD oil and CBD products derived from industrial hemp are safe for use as food by the state.
When it comes to matters on industrial hemp, the state of California applies the federal rules, as the Public Health department clarifies. Consequently, the business owners with stocks of CBD products are legally left hanging in a grey area that has the faceoff between private attorneys and government lawyers.
Rusty Payne, the DEA spokesperson, says “Hemp is just a created word, and thus for it to be regulated it has to fit within the definition of marijuana, but not only testing positive for THC. Besides, CBD products are derived from a controlled plant, which is illegal.”
What the spokesperson is trying to imply is that every part of the cannabis plant is illegal under the Controlled Substances Act, and hemp is no exception as it is a variety of the same plant. However, this regulation excludes seeds and mature stalks incapable of germination. The government excludes these parts as it considers them unable to produce any controlled or banned substances. But any product made from any of the other parts of the cannabis plant is deemed to be illegal.
While speaking to Herb, Chernis Law Group director, Michael S says, “CBD is not deemed illegal on its own. Nevertheless, the DEA makes a presumption that any source of CBD must be illegal because you cannot get the compound from the portions that are excluded in the Controlled Substance Act.”
However, industrial hemp is excluded from this rule according to the Farm Bill that was passed in 2014. The 2014 Agricultural Act also legalized growing of industrial hemp as long as it is done as part of a pilot program regulated by the state or for research purposes. It has so far been implemented in almost every state in the U.S.
Federal Law against the Use of Hemp-Derived CBD Products
The federal government maintains that hemp-derived CBD is illegal. On the other hand, farmers, retailers, and manufacturers of CBD products have relied on the 2014 act to prove that their businesses are legal. As a result, CBD is available today almost everywhere from local stores to Amazon, Walmart, and ship to all states that consider it legitimate.
However, the new move, which appears as a ban has brought complications on the issue of the legality of hemp-derived CBD products, mainly because CBD is a safe product that is free of the psychoactive component from the cannabis plant. Usually, the federal agents have been after substances that cause psychoactive effects or those that get you high such as marijuana as it contains THC.
“The only issue with CBD derived from industrial hemp in California is that the state has not established a controlled process for extraction and cultivation of the plant,” Chernis clarifies. “The source of the ingredient used is the one that determines the legality of CBD products.”
According to California’s Department of Public Health, the new ban targets CBD derived from industrial hemp and not CBD products.
Official Hemp CBD Ban
As mentioned above, the report of the new ban was unannounced as it came out to the public through the Health Department as it was responding to public queries. The clarification was quietly released on July 6th, 2018 as a revised FAQ Sheet stating a complete ban on CBD in any pet food or food products. With the official ban citing the 1970 Controlled Substance Act and the FDA’s stance, the FAQ reveals that industrial hemp is not considered safe for human consumption regardless of the source. The FAQ states:
“The use of hemp-derived CBD as an ingredient in food products is not allowed although the state of California currently allows sales and manufacturing of cannabis products. Therefore, until the FDA determines that the CBD products and hemp-derived CBD oil are safe for human consumption, CBD products will not be approved as a food ingredient, food, dietary supplement or food additive.”
It is not yet clear whether the state of California has assigned a task force to push for the implementation of this ruling. However, it would appear difficult for retailers with stocks in health food store, cape shops, liquor store, gas station, head shop, grocery store, pet store or convenience stores to pull hemp-derived CBD products off their shelves.
As stated earlier, the FAQ sheet cites the 2014 US Farm Bill, but also adds, “Industrial hemp cultivation in the state is regulated by the CDFA (California Department of Food and Agriculture). For questions on hemp cultivation in California, the Department of Public Health requires you to refer to Division 24 of the Food and Agricultural Code (Industrial Hemp Law) under CDFA rules.
The Industrial Hemp Law describes a number of unorthodox regulations that ask for specific requirements for testing, reporting and teaming up with the commissioner in the agricultural department. Besides, it also requires specific board members of all kinds and with required associations.
Using industrial CBD on any pet, food or cannabis products is not allowed, although hemp seed oil and hemp seeds are allowed. This implies that all CBD should be produced under licensed manufacturers from the whole plant and sold in licensed dispensaries in California.
However, according to the FDA, each hemp product should apply. It is also important to understand that all hemp products applications are still pending, and the regulatory body has denied approval of only one application since 2000. Technically, products that contain THC amount that is above 0.03 percent are not considered hemp. For instance, Epidiolex and GW Pharmaceuticals Sativex drugs are not considered hemp as they contain 0.15 percent THC.
The existing law that includes the 1994 Dietary Health and Education Act allows the FDA to order retailers to pull such products off the shelves. But they have to prove first that a product is unsafe, or misbranded with either misleading or false labeling. Fortunately, the Bureau of Cannabis Control in California did not place Hemp in MAUCRSA. Instead, it defined the products made from industrial hemp as non-cannabis items that should not be sold even in licensed cannabis retailers.
Why is the New Ban in California Causing Confusion?
The memo by the Department of Public Health reveals that the confusion results from the fact that marijuana products are regulated and tested by the BCC (Bureau Cannabis Control), which is the authority that supervises all the cannabis retail in the state. On the other hand, industrial hemp is under California’s agricultural department.
As mentioned earlier, industrial hemp is only allowed under the state’s pilot program, where the only acceptable use is for research purposes, but not for making edible products. Therefore, a dispensary is allowed to extract CBD oil from recreational or medical marijuana only as it produced through the right legal channels although the CBD in both plants is similar.
“Where the confusion is now, is that there are two different regulatory entities,” explains Simone Cimiluca-Radzins. Simone is a CEO of Kalogia, which is a consulting company for cannabis businesses. According to her, the state could easily solve the issues by choosing to regulate industrial hemp using the same ways they use to regulate recreational cannabis. For now, most of Simone’s clients are concerned that the new ban may eventually force them to remove their products from the shelves.
According to Chernis, any product whose THC content is above 0.3 percent will still fall under the regulations by the BCC even if you decide to derive CBD from it. The BCC is the body that controls the legal market in the state of California, and thus the memo will not apply to it. It is also important to understand that the FDA regulations that state you are not allowed to make health claims still applies.
The entire regulation process could be more straightforward if regulators admitted that they are talking about the same compound of two plants that are almost identical. Instead, the legal representatives of the members of the industry and the members still appear confused despite the clarification by the Department of Public Health through the memo. It is an issue that might require to wait for Hemp Farming Act by Senator Mitch McConnell’s (R-KY), which seeks to legalize the beneficial plant that has only be used only to make ropes in the entire American history.
However, a report from Hemp Industry Daily expresses great optimism about the issues surrounding industrial hemp ban in California as the author Patrick Goggin, a San Francisco Attorney believes that people should not panic yet. “We all need to take a deep breath,” says Goggin while citing that the rules are not clear enough for the federal agents to act definitely.
For instance, Chernis is facing the federal government in a class action lawsuit while trying to protect imported CBD from random seizures by the Border Protection and Customs officials.
“The officials destroy the imported CBD after seizures, “and their actions are due to the misunderstanding of the rules.” He continues, “we have succeeded in several occasions to come in and prevent them from destroying this material, usually by proving its legality.”
Finally, there has been good news to those in CBD business as the first CBD-based medicine known as Epidiolex, has just been approved by the FDA. The CBD-based drug is a spray used in the treatment of epilepsy. However, the food regulatory body has less than three months to decide whether to reschedule CBD or Epidiolex more broadly.
References
California Bans Hemp-Derived CBD Oil Because It’s Not Regulated: https://herb.co/marijuana/news/california-bans-hemp-derived-cbd-oil-from-shelves/
Official CBD Ban in California & United States: https://ediblesmagazine.com/politics/hemp-cbd-ban-in-california/
Hemp-derived CBD Not Allowed in Food (or Pretty Anything Else) in California: https://www.cannalawblog.com/hemp-derived-cbd-not-allowed-in-food-or-pretty-much-anything-else-in-california/
California Bans CBD Oil: https://cannabisnow.com/california-bans-hemp-derived-cbd-oil/
California Bans Hemp-Derived CBD from Edibles: http://www.marijuanaresources.com/california-bans-hemp-derived-cbd-edibles/
California Hemp Industry Scrambles to Adjust to Food Rule “Roll Coaster”: https://hempindustrydaily.com/california-cbd-industry-scrambles-adjust-food-rule-roller-coaster/
