Justifying its new stance by citing some controversial past policies issued by the Food and Drug Administration, and the Drug Enforcement Agency, the CDPH has sent shock waves through both the U.S. hemp-derived CBD (under 0.03% THC) U.S. market, and upended legal status for California’s thousands of health food stores, alternative health outlets and a plethora of eateries all serving up low-THC CBD. Appeals to overturn the rules have flooded the offices of CDPH in Sacramento.
The July 6th policy guidance issued by the CDPH seriously curtails expansion plans by US/Canada hemp growers to export more low-THC CBD into the massive state market– and likely throws CBD access to consumers to the home-grown “marijuana-derived” plants which typically contain a 1:1 THC to CBD formulation.
In drawing an argument for keeping CBD out of the state’s food supply (which CDPH does regulate) the agency said it is relying on FDA precedent to build an interpretation to be applicable to “food, drink, confection, condiment, gum or animal” products.
“Although California currently allows the manufacturing and sales of cannabis products (including edibles), the use of industrial hemp as the source of CBD to be added to food products is prohibited,” said the memo. And the CDPH noted, “until the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food — or California makes a determination that they are safe to use for human and animal consumption — CBD products are not an approved food, food ingredient, food additive, or dietary supplement.”
“This is having a major impact on the industry,” said Vicente Sederberg associate Shawn Hauser, who runs the law firm’s hemp practice, and is a leading member of the new American Hemp Campaign, organized to provide educational support to the hemp expansion effort. Hauser was in Austin, Texas July 17th, testifying before a House agriculture committee on the farmer benefits of passing laws to create a strong hemp-growing market. Others bringing pro-hemp comments included the Hemp Roundtable, Vote Hemp and several Texas farmer interests.
“We urge industry stakeholders to remain patient, while closely monitoring the situation, as we have seen similar statements made by equivalent agencies in other states, and in many cases, those policies are rescinded or amended,” said Hoban Law’s Garrett Graff, associate attorney who is working on serial hemp issues. In Sacramento, a hemp-growing clarification bill is pending, while only a handful of counties have approved hemp grows.
By targeting only the hemp-derived source of CBD, the public health agency created as many new questions for consumers as it answered. It said that non-CBD parts of the hemp plant (ie., seedcake, hemp hearts, hemp flour) would all continue to be safe for California’s consuming public. But naming hemp-derived “dietary supplements” as banned, CDPH is forbidding U.S.-sourced CBD oils created in North America, but turning the other cheek is still allowing the exact same CBD oil to be purchased off-the-internet.
Finally, while considered newly-questionable for consumer safety, industry observers universally agreed that the CDPH had virtually no “enforcement resources” to remove CBD off store shelves, as had been done last year in the smaller states of Indiana and Kansas.
“We are working to get the Health authority to realize that hemp is a naturally-occuring, safe, sustainable product,” which should be available to health-conscious citizens of California, notes Eric Streenstra of Vote Hemp. Streenstra hopes there is potential for having the Health department reconsider its July 6th guidance, which he and others felt was an especially broad interpretation of DEA (schedule 1) and FDA (no health claims) policy toward hemp-grown CBD. And another question arises out of the overall ability for the CDPH to set rules over a CBD product which does not fall under its purview when presented as a non-food, non-additive—as many over-the-counter nutraceuticals.
“We can only hope our companies engage with other industry members to educate CDPH, and get policy changed,” said Hauser, citing efforts by Hemp Industry Association and its affiliates being critical at this time. She underscored the need for education to California regulators and lawmakers, saying the July 6th notice was an “illustration of the confusion of policy-makers around these laws.”
For its part, Washington-based Hemp Roundtable said it was closely monitoring the California developments after sending a detailed letter outlining why it felt CDPH’s new guidance places major segments of the legal CBD industry at risk.