Sacramento bureaucrats have silently, but effectively dealt the fatal blow to California’s emerging CBD industry. Despite the fact it has received little media attention, the decision from Sacramento has potentially far-reaching implications not only for the states cannabis industry — but for patients who have come to rely on CBD to treat a wide range of ailments.
Rewind to July 6th, the California Department of Public Health issued a memo making it clear that hemp derived CBD oil is not under the purview of the state’s cannabis regulations.
According to the memo, the Food and Drug Branch (FDB) “has received numerous inquiries from food processors and retailers who are interested in using industrial hemp-derived cannabidiol (CBD) oil or CBD products in food since the legalization of medicinal and adult-use marijuana in California.”
The memo makes it apparent that the public health department’s Manufactured Cannabis Safety Branch “regulates medicinal and adult-use manufactured cannabis products,” while “food products derived from industrial hemp are not covered by MCSB regulations. Instead, these products fall under the jurisdiction of CDPH-FDB.”
Interestingly enough, California is willing to challenge the federal government’s authority on the legalization of cannabis, but not willing to challenge the federal government when it comes to hemp. According to the memo: “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.
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.”
The impact on California’s hemp farmers, CBD producers, and distributors has been strong and swift.
“It’s a real punch in the stomach,” said Chris Boucher, who is growing 60 acres of hemp in Southern California, most of it destined for CBD extraction.
“It’s the last roller coaster. If you have a multimillion-dollar investment in the ground, as I do, this comes at the worst time.”
The situation also has amplified existing confusion on the marijuana side of the industry for retailers licensed through the Bureau of Cannabis Control (BCC), which prohibits licensees from selling hemp-based CBD products.
“The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) applies to cannabis and explicitly excludes industrial hemp from the definition of cannabis,” said Alex Traverso, spokesman for the BCC, in an email.
Many licensees either don’t understand the prohibition or aren’t aware of it, said Debby Goldsberry, executive director at Magnolia Wellness in Oakland, a licensed microbusiness that previously carried hemp-based CBD bath balms and pet products.
“The clarity, coming back from BCC in the last couple months, has been very confusing and hard to interpret,” she said. “So all of us became confused by suppliers swearing up and down that the Bureau had cleared their hemp-based CBD products (for sale).”
“Then we’re confused because of course, we can see CBD products on the shelves everywhere: Pet Food Express, Target, you name it, CBD is everywhere. So it makes absolutely no sense why those products couldn’t come into a cannabis-oriented retail store.”
Goldsberry pulled all her hemp product inventory in order to be as compliant with state rules as possible.
But not every licensee is following suit.
“A lot of people are still keeping the bath balms on their shelves, because of the confusion,” Goldsberry said. “We can’t tell if they should be there or not.”
- CBD cannot be added to “food, drink, confection, condiment or chewing gum by man or other animals.”
- The source of the CBD, whether from marijuana or industrial hemp, does not matter.
- CBD would have to come from people with “commercial cannabis licenses,” something many hemp-derived CBD processors and manufacturers in California do not have.
- Marijuana retailers must use marijuana-derived CBD in their products. Hemp-derived CBD is specifically banned in manufactured cannabis products, according to Dana Cisneros, an attorney with Cannabis Corporate Law Firm in Anaheim Hills.
“While I disagree with the state of California’s position and approach to hemp-derived CBD – given that it is the same molecule – the law is clear and the FAQ released by the CDPH-FDB confirms the hemp-derived CBD cannot be lawfully added to a food, food product or dietary supplement,” Cisneros said.
“This is devastating for small businesses in California that rely on hemp-derived CBD. This is devastating for patients that cannot afford to purchase cannabis-derived CDB products sold in BCC licensed retail establishments.
“And it is nonsensical,” she said.