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Hemp-CBD Across State Lines: California

california hemp cbd

The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA. This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp-CBD”). Each Sunday we will summarize a new state in alphabetical order. So far, we have covered Alabama, Alaska, Arizona and Arkansas. This week we turn to California.

I personally think that it’s a bit difficult to talk about Hemp-CBD in a vacuum in California, because the laws we have here are much more focused on the actual hemp plant itself. So today, I’m going to talk not only about Hemp-CBD, but also about laws on cultivation and processing.

Hemp Cultivation

Of all the things you can do with hemp in California, cultivation is probably the safest and most “legalized”. It’s had a relatively long and complex history in this state, beginning most significantly in 2013, when California passed Senate Bill 566, the California Industrial Hemp Farming Act (or “CIHFA”). The CIHFA amended CA law to redefine “marijuana” to exclude industrial hemp, and to define industrial hemp. It also added a section to the Food and Agriculture Code that would regulate the production of hemp by established agricultural research institutions (“EARIs”) and commercial cultivators. Even though there was a law allowing commercial cultivation, it didn’t actually take place until many years later.

The next year, the federal Agricultural Act of 2014 (or “2014 Farm Bill”) was passed. As readers of this blog probably know by now, section 7606 of the 2014 Farm Bill allowed the cultivation of hemp for research purposes conducted under an agricultural pilot program or by a research institution, in states where hemp cultivation was legal. California still hasn’t developed an agricultural pilot program, but according to FAQs issued by the California Department of Food and Agriculture (“CDFA”), the pilot program is in the works.

After the 2014 Farm Bill was passed, on June 6, 2014, then-California Attorney General (and current 2020 U.S. presidential runner) Kamala Harris issued opinion 13-1102, which stated “Federal law authorized, and rendered operative, the relevant portions of the California Industrial Hemp Farming Act on February 7, 2014.” Harris’ opinion, however, noted that provisions of the CIHFA were “inoperative to the extent that they apply or pertain to any form of industrial hemp cultivation not authorized by federal law.” In plain English, commercial cultivation was still not allowed.

In 2016, the Control Regulate and Tax Adult Use Of Marijuana Act (or “Prop. 64”) was passed. Prop. 64 formally amended the above California Food & Agriculture Code sections to make the hemp provisions become effective on January 1, 2017. But even that didn’t really happen.

In 2018, commercial cultivation began to become a reality with Senate Bill 1409. SB-1409 (which we have written about here, here, and here) allowed for the commercial cultivation of hemp upon registration with the CDFA and county commissioners, effective January 1, 2019. It was only on April 30, 2019, years after the CIHFA was passed, that the CDFA published information concerning registration with county agricultural commissioners to cultivate hemp.

To date, CDFA has created (1) regulations that deal with cultivation for commercial purposes; (2) regulations that list of approved seed cultivars; (3) emergency testing and sampling regulations; (4) guidelines for county agricultural commissioners to collect certain information from EARI cultivators; and (5) guidelines requiring certain hemp cultivators to obtain nursery stock licenses. More are likely to come, and soon.

What this all means is:

  • Pilot Program: We don’t have one here officially yet, but might soon.
  • EARIs: CIHFA basically allows EARIs to cultivate hemp with very few restrictions. There are still a lot of unanswered questions, like whether this hemp can be sold for commercial purposes.
  • Commercial Cultivation: Commercial hemp cultivators can pay a modest fee to cultivate hemp (provided their local jurisdiction allows it), and are subject to some testing and sampling, as well as other requirements. All in all, commercial cultivators are subject to DRASTICALLY fewer restrictions and regulations than commercial cannabis cultivators in CA (for the record, CA defines “Cannabis” here to exclude hemp, sorry for any confusion). However, because the 2018 Farm Bill hasn’t been fully implemented and the federal government is still relying on the 2014 Farm Bill, commercial cultivation is still in a gray area.

Being California, this is of course about to possibly change. The state is considering passing new legislation (SB-153) that would amend the hemp provisions of the Food and Agriculture Code to be more consistent with the 2014 and 2018 Farm Bills. I plan on writing more on SB-153 in the coming weeks, but for now, here are some highlights:

  • SB-153 would contain a new definition of “industrial hemp” that’s sort of different from CA’s current definition in the Health and Safety Code, meaning there will be two definitions of the term;
  • The definition of EARI would be restricted much, much further to apply to a much smaller subset of research institutions;
  • Permits would be required for all hemp cultivation—including non-commercial cultivation—meaning that some research institutions that currently qualify as EARIs will need to register and comply with CDFA regulations;
  • The CDFA will be forced to create and submit a hemp production program to submit to the U.S. Department of Agriculture per section 297B of the 2018 Farm Bill; and
  • People who provide false information on their commercial hemp registrations will be barred from participating in CA’s future hemp program.

This is just a brief overview and, again, I plan on writing in detail on SB-153 in the coming weeks. Needless to say, however, SB-153 would clarify a lot for hemp cultivators here given that the 2018 Farm Bill has yet to be implemented and, to date, there hasn’t been much action to get a California hemp production plan going.

Hemp Processing/Manufacture/Testing

The CDFA FAQs say all that needs to be said: “California law does not currently provide any requirements for the manufacturing, processing, or selling of non-food industrial hemp or hemp products.” That said, the California Department of Public Health’s (“CDPH”) Hemp CBD FAQs take the position that Hemp CBD is illegal in basically all foods, beverages, and some other products. Based on this position, the CDPH has apparently been going after manufacturers of Hemp CBD products on the grounds that Hemp CBD “adulterates” foods, under the California Sherman Food, Drug, & Cosmetic Law.

I recently wrote about a new law (AB-228) that if passed, would find conclusively that Hemp-CBD added to foods and other products does not in and of itself adulterate them. The law looks poised to pass, and if it does would do the following:

  • Licensed cannabis companies wouldn’t be precluded from being in the hemp business;
  • Hemp products that are foods, beverages, or cosmetics would have some minimal labeling requirements;
  • Food manufacturers that make hemp products would be required to obtain certain registrations and would need to demonstrate that their hemp comes from a jurisdiction that has an “established and approved industrial hemp program” that meets all federal requirements for the sale and cultivation of hemp;
  • The CDPH wouldn’t be able to conclude that foods, beverages, or cosmetics are adulterated just because they contain CBD; and
  • Raw hemp products would need to undergo certain lab testing and get certificates of analysis prior to sale.

Hemp-CBD Product Sales

The CDPH’s Hemp CBD FAQs prohibit the sale of Hemp CBD in foods and many other products as noted above. It’s less clear about certain products like flower, oil, and vape cartridges. But we do know what if AB-228 passes, Hemp CBD may be allowed in many kinds of products that the state has, for some reason, tried to ban.

In the near future, we may be dealing with a “legal” and regulated Hemp CBD market in California.

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Where Do Federal Agencies Stand on CBD?

cbd federal government

In the past few weeks, many opinions on the sale, marketing and transportation of hemp and hemp-derived CBD-infused (“Hemp-CBD”) products have been released by federal agencies, including the U.S. Food and Drug Administration (“FDA”), the U.S. Department of Agriculture (“USDA”), the U.S. Postal Service (“USPS”), and the Transportation Security Administration (“TSA”). While we have written on these agency policies individually, we thought it would be helpful to recap these opinions under one blog post.

FOOD & DRUG ADMINISTRATION

Since the enactment of the 2018 Farm Bill, the FDA has expressly opined that the sale and marketing of CBD-infused food and dietary supplement in interstate commerce is unlawful because CBD has already been approved as a drug, and thus, cannot be concurrently sold or marketed as a food or dietary supplement. Nevertheless, the substantial public interest in accessing CBD in food and dietary supplements has forced the FDA to explore potential regulatory pathways for the lawful marketing of these products. On May 31, the agency held a public meeting that offered CBD stakeholders a platform to share feedback and experiences and provided the agency with information related to the cannabis-derived compound. In addition, the agency created a working group that is evaluating the regulatory frameworks for non-drug uses of CBD. The agency anticipates updating the public about its progress later this summer.

U.S. DEPARTMENT OF AGRICULTURE

On May 28, 2018, the USDA issued a non-binding opinion letter in which the agency explained, in part, that states and Native American tribes may not prohibit the interstate transportation or shipping of hemp or hemp products lawfully produced under the 2014 Farm Bill. Specifically, the USDA reasoned that state and tribe interference is prohibited pursuant to the 2018 Farm Bill, which provides that “[n]othing in this sections prohibits the production of hemp in a State or the territory of an Indian tribe, for which a state or Tribal plan is not approved under this section, if the production of hemp is in accordance with [. . .] other Federal laws [i.e., the 2014 Farm Bill]” (Emphasis added). Note that while the USDA letter is non-binding, this agency policy strongly supports the position that states and tribes should not interfere with lawfully grown and processed hemp shipments.

U.S. POSTAL SERVICE

In March the USPS released guidance on mailing Hemp-CBD products, which it clarified at the beginning of June. Pursuant to its most recent guidelines, the USPS authorizes the mailing of Hemp-CBD products so long as (1) the products contain no more than 0.3 percent THC; (2) the mailer complies with all applicable federal, state, and local laws that pertain to hemp production, processing, distribution and sale; and (3) the mailer retains records establishing compliance with such laws, for no less than 2 year after the date of mailing. The second prong suggests that mailing Hemp-CBD food and dietary supplement would not be lawfully mailable given that these products violate the Food, Drug, and Cosmetic Act (i.e., the laws enforced by the FDA); however, this issue has yet to be administratively litigated or clarified by the USPS.

TRANSPORTATION SECURITY ADMINISTRATION

Back in May, we wrote about the confusing guidelines issued by the TSA on traveling with CBD-infused products. Shortly after our post was published, the agency revised its website, which now provide that:

Marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law except for products that contain no more than 0.3 percent THC on a dry weight basis or that are approved by FDA. (See the Agriculture Improvement Act of 2018, Pub. L. 115-334.)” (Emphasis added).

On its face, this policy suggests that the TSA will authorize travelers to carry any CBD-infused product that meets the federal THC concentration limit of 0.3 percent, even if the product is deemed unlawful by the FDA. However, travelers should understand that traveling with these products remains risky for two reasons: (1) “[t]he final decision rests with the TSA officer on whether an item is allowed through the checkpoint”; and (2) if it unclear how TSA would test products to verify their THC content. As far as we know, the TSA’s testing procedure is solely geared towards determining whether THC is present, not to measure its exact concentration.

To conclude, while the USDA, the USPS, and the TSA have all released guidelines that seem to legalize the transportation and shipping of Hemp-CBD products, these policies are drafted too broadly to completely shield carriers, mailers and travelers from enforcement actions. We anticipate – and sincerely hope – that the transportation of these products will become clearer and easier once the FDA implements a regulatory framework for their sale and marketing.

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California is Poised to Pass a Landmark Hemp CBD Law

california hemp

California is on the brink of legalizing hemp-derived cannabidiol (“Hemp CBD”) in many products—well, sort of. The law at issue is Assembly Bill 228 (“AB-228”), and I’ve been writing about it since it was introduced in January 2019 (for my posts on it, see here, here, and here). As of today, it’s made its way through the California Assembly and most of the way through the California Senate with very little resistance. AB-228 is likely to pass soon, and because it is what’s called an “urgency” statute, will become immediately effective.

Since I started writing about AB-228, the bill has morphed a lot, and now actually has some teeth. Even if it passes though, Hemp CBD may not be completely legal in the Golden State. Here’s a brief explanation of what’s happened, and what’s at stake.

About a year ago, the California Department of Public Health’s (“CDPH”) released its now-infamous Hemp CBD FAQs, which take the position that Hemp CBD is illegal in basically all foods, beverages, and some other products (but note, there is not a single law or regulation on the books anywhere in the state that takes this position). The FAQs “outlawed” Hemp CBD based on the federal Controlled Substances Act (which as of December 20, 2018 and the passage of the 2018 Farm Bill no longer hemp illegal) and the fact that the federal Food and Drug Administration (“FDA”) did not allow the addition of Hemp CBD to the same products that are mentioned in the FAQs. (For a discussion of the FDA’s policy memos which claim that Hemp CBD is illegal, see here and here).

While the FAQs didn’t really cite California law (except to define foods, etc.) as the basis for enforcement, it’s come to light that the CDPH has been relying on the California Sherman Food, Drug, & Cosmetic Law (not to be confused with the federal Sherman Act, an antitrust law), to pull Hemp CBD products from retail and wholesale operations. The CA Sherman Law gives the CDPH authority over foods and beverages and allows them to target products that it deems “adulterated”. In a sense, the CA Sherman Law is a lot like the federal Food, Drug and Cosmetic Act that the FDA gets its authority from (hence all of the citations to FDA policy).

Originally, AB-228 was very narrow and only would have created a law saying that the mere addition of Hemp CBD to foods and cosmetics did not adulterate them. Over the last few months, in various committees, more and more things have been piled onto the bill. Here are some of the highlights of the current version:

  • Licensed cannabis companies wouldn’t be precluded from being in the hemp business;
  • Hemp products that are foods, beverages, or cosmetics would have some minimal labeling requirements;
  • Food manufacturers that make hemp products would be required to obtain certain registrations and would need to demonstrate that their hemp comes from a jurisdiction that has an “established and approved industrial hemp program” that meets all federal requirements for the sale and cultivation of hemp;
  • The CDPH wouldn’t be able to conclude that foods, beverages, or cosmetics are adulterated just because they contain CBD; and
  • Raw hemp products would need to undergo certain lab testing and get certificates of analysis prior to sale.

It’s clear that if AB-228 becomes law, it will be a huge victory for the burgeoning hemp industry across the state. But there are a few key issues that may still not wipe out the gray areas:

  • AB-228 does not change federal law. The California legislature has no power to modify federal law or policy. The FDA’s policy memos are not affected by California law. If sellers sell Hemp CBD foods, they may still draw the ire of the FDA—which is more likely if medical claims are made.
  • AB-228 does not require the CDPH to ignore federal law. Remember that the CDPH FAQs cited the FDA’s position. It is theoretically possible that the CDPH could continue to uphold the FAQs unless and until the FDA changes its mind. I think this is unlikely to happen, but in the hemp world, sometimes anything is possible.
  • AB-228 does not take away all grounds for enforcement from CDPH. If AB-228 passes, the addition of Hemp CBD to foods and cosmetics alone doesn’t render them adulterated. But that’s just scratching the surface. Other things could render them adulterated. The CDPH can also go after “misbranded” foods and other products. And, of course, there are tons of other product specific laws (e.g., Prop. 65) that may create problems for sellers of CBD goods.

In spite of these issues, if AB-228 passes it’ll create a lot of certainty for hemp businesses in California, where there previously wasn’t much. We’ll stay tuned on updates to this law and how it will affect the hemp industry in California, and as a whole.

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Hemp-CBD Across State Lines: Arkansas

arkansas cannabis hemp

The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA. This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp-CBD”). Each Sunday we will summarize a new state in alphabetical order. So far, we have covered Alabama, Alaska and Arizona. This week we turn to Arkansas.

The Arizona State Plant Board (“ASPB”), which is part of the state Department of Agriculture, has been overseeing the state’s hemp program since August 2018.

The ASPB rules require a license to cultivate, process, distribute or market raw hemp and industrial hemp products. “Industrial hemp products” or “hemp products” means “products derived from, or made by, processing industrial hemp plants or plant parts, including without limitation: (A) Certified seed for cultivation if the seeds originate from industrial hemp varieties; (B) Cloth; (C) Cordage; (D) Fiber; (E) Food; (F) Fuel; (G) Paint; (H) Paper; (I) Particleboard; (J) Plastics; and (K) Seed, seed meal, and seed oil for consumption.”

The rules also provide for “publicly marketable hemp product” which is differentiated from “industrial hemp products” and refers to “a hemp product that meets one or more of the following descriptions:”

(a) the product does not include any living hemp plants, viable seeds, leaf materials, floral materials, or decarboxylated delta-9-THC content above 0.3 percent; and does include, without limitation, the following products: bare stalks, bast fiber, hurd fiber, nonviable roots, nonviable seeds, seed oils, and plant extracts (excluding products containing decarboxylated delta-9-THC above 0.3 percent).

(b) the product is CBD that was derived from industrial hemp, as defined in this regulation; or

(c) the product is CBD that is approved as a prescription medication by the United States Food and Drug Administration.”

Publicly marketable hemp products are excluded from the ASPB’s definition of “cannabis” as well as from the ASPB’s explanation of who must apply for a license to grow or process industrial hemp. Accordingly, no license or permit is required by the state agency to sell or deliver Hemp-CBD products in the state.

Moreover, on March 18, 2019, Arkansas removed Hemp-CBD that contains no more than 0.3 percent THC on a dry weight basis and that is not approved as a drug by the FDA from its list of controlled substances. In doing so, the state removed all criminal and civil penalties for possession hemp-derived CBD products in Arkansas, and thus, authorized the sale of these products regardless of continued federal prohibition.

Consequently, it is safe to say that Arkansas is one of the safest and most hemp-friendly states in the country.

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Hemp Testing

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