Our response to California’s attempt to ban hemp CBD in California
Posted : KickBack Cold Brew, Date :
Kickback Cold Brew is working with theUS Hemp Roundtable, a coalition made up of dozens of hemp companies, along with CEO’s from food & beverage companies likeGT’s Kombucha, to protect the legal right of all Californians to access safe & beneficial hemp CBD products.
On July 6, 2018, the Food and Drug Branch of the California Department of Public Health released anFAQdocument containing misstatements about Hemp and Cannabidiol (CBD) that has created confusion and disruption in the marketplace among both retailers and consumers, as well as others employed within the industry. The action taken by the California Department of Health has put the legal right to access safe & beneficial Hemp CBD in California in jeopardy.
Taking a Stand Together
On July 30th, we organized a coalition of CEO’s representing a number of food & beverage companies in California who are using Hemp CBD in our foods and together, we sent a letter to Dr. Karen Smith, Director of California’s Dept. of Public Health.
Our goal is educate Dr. Smith on the legality of Hemp CBD at the federal & state level while also correcting several misstatements she made when her department issued a statewide FAQ document on hemp CBD.
The full letter sent to Dr Karen Smith reads:
Dear Dr. Smith:
We write to express concern and correct misstatements in the FAQs regarding industrial hemp and cannabidiol (“CBD”) that were released by the California Department of Public Health (“CDPH”) on July 6, 2018. As persons involved in the industry on a daily basis who have on the ground knowledge regarding the sale and consumption of food products that contain cannabidiol (“CBD”), we can inform you that the FAQs have caused considerable confusion and disquiet in the marketplace among both retailers and consumers, as well as other employed within the industry. For both practical and substantive reasons set forth below, we ask that the CDPH withdraw the FAQs to give the issues addressed therein further consideration.
Social and Political Headwind
Before addressing a number of the substantive misstatements contained in the FAQs, we would like to address items relating to the political and social background that make the timing and substance of the FAQs problematic. First, the attitude towards industrial hemp displayed in the FAQs runs counter to the will of the California electorate when it overwhelmingly passed Proposition 64. As you are well aware, Proposition 64 did not merely legalize the recreational use of marijuana. It also contained provisions authorizing the commercial production of industrial hemp in California. While the California Department of Food and Agriculture is still in the process of creating the process and procedure by which industrial hemp can be produced, the express desire of the California electorate to allow for the legal production and use of industrial hemp in California has been made clear.
Second, the timing of the release of the FAQs is curious in light of the fact that the Agricultural Act of 2018 is being sent to conference to resolve differences in the version of the bill passed by the U.S. House of Representatives and the U.S. Senate. The bipartisan bill passed by the Senate by a vote of 86-11 included a provision explicitly and fully legalizing industrial hemp and all products made from it, including CBD oil, in the United States. Under the new law, any question regarding the legality of industrial hemp would be erased, and the Drug Enforcement Administration would no longer have any basis for interfering, or ability to interfere with, industrial hemp. Specifically, the 2018 Farm Bill would remove industrial hemp from the Controlled Substances Act (“CSA”) and allow industrial hemp production in all fifty states.1 Releasing the FAQs in the face of the impending legalization of industrial hemp is counterproductive, and underscores that the CDPH is swimming against the tide on this issue. That reality is highlighted by the reality that three days after the FAQs were released, Governor Jerry Brown signed Assembly Bill No. 710 into law. That bill explicitly recognized that “industrial hemp products and derivatives containing cannabidiol” are “currently available under state law.” (AB 710, Sec.1.)2
Chief among the substantive misstatements in the FAQs is the assertion that the United States Food and Drug Administration (“FDA”) has “concluded” that CBD is a “prohibited” food additive. This assertion, and the resulting deference to the FDA’s supposed conclusion, forms the basis for much of the analysis in the FAQs. But the FAQs do not include a citation for that assertion — with good reason. It simply is not the case that the FDA has reached a final conclusion on the issue. Indeed, the only place the FDA has asserted that position is in a set of Questions and Answers the FDA posted to its website as “Related Information” to an article entitled “FDA and Marijuana.”3 In that Q&A, the FDA expressly states that its “continuing review” of the issue is ongoing, and invites interested parties to “present the agency with any evidence that they think has bearing on this issue.” Thus, any assertion that the FDA has given its final word on the issue is mistaken.
Next is the assertion that “CBD derived from hemp and cannabis is a federally-regulated controlled substance.” But that assertion is unsupported by citation, and, again, inaccurate. As the DEA concedes, “cannabinoids are not independently scheduled as controlled substances.” Rather, as the DEA has made clear cannabinoids are a controlled substance only to the extent they are a “component of marijuana” — the “only substance to which DEA’s rule applies.” In other words, “cannabinoids are controlled to the extent that they are found in non-exempt parts of the cannabis plant.” (Hemp Industries Association v. U.S. Drug Enforcement Administration, Respondent’s Brief, 2017 WL 2418246 (C.A.9), at p. 28-30.) Simply, the dispositive test is whether a substance falls within the Controlled Substance Act’s definition of “marijuana,” which is defined as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. (21 U.S.C.A. § 802(16).) Thus, “marijuana” does not include CBD derived from the exempted parts cannabis plant.
Nor does the definition of “marijuana” include “industrial hemp,” which is separately defined as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (7 U.S.C. § 5590(b)(2).)4 That definition is contained in the Agricultural Act of 2014 (the “Farm Bill”), which makes clear that “industrial hemp” is exempted from the CSA.5 The Farm Bill provides that “[n]otwithstanding the Controlled Substances Act … or any other Federal law, an institution of higher education … or a State department of agriculture may grow or cultivate industrial hemp,” where it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.” (7 U.S.C. § 5940(a).) The Ninth Circuit Court of Appeals recently made clear that the Farm Bill trumps any effort to forbid the growth or cultivation of industrial hemp pursuant to the CSA because the Farm Bill “contemplates potential conflict between the Controlled Substances Act and preempts it.” Hemp Indus. Ass’n v. U.S. Drug Enf’t Admin., 720 F. App’x 886, 887 (9th Cir. 2018).6
Finally, while the DEA has promulgated a rule that purports to include both “natural and synthetic THC” within the “listing of ‘Tetrahydrocannabinols’ in schedule I (see Clarification of Listing of “Tetrahydrocannabinols” in Schedule I, 68 FR 14114-01), pursuant to which one could assert that “industrial hemp” that contains THC is a “controlled substance,” that irrespective of the Farm Bill, it is inarguable that CBD that is (i) are not a “component of marijuana” and (ii) contains zero THC is not a controlled substance. Accordingly, the CDPH’s blanket assertion that “CBD derived from hemp and cannabis is a federally-regulated controlled substance” is simply false. There is no basis for asserting that “CBD is an unapproved food additive” in all circumstances.
As set forth above, as drafted, the FAQs fly in the face of not only current law, but also the current political climate and the will of the California votes as expressed through the passage of Proposition 64. The misstatements in the FAQs create confusion in the market, and lead a reader to erroneously conclude that a CBD product with zero THC is de facto illegal. Such “guidance” from the CDPH deprives California consumers access to products that are not only safe, but beneficial to one’s health.7 Further, to the extent such guidance seeks to not only inform the public of existing law, but rather fill perceived holes in a manner purportedly consistent with existing law, the FAQs represent an improper use of the CDPH’s regulatory power in so far as the CDPH bypassed the process and procedure required to promulgate a regulation. We implore you to retract the FAQs and reconsider the issues with input from people with knowledge of the relevant issues. We would be happy to participate in such a reconsideration process and further inform the CDPH on these important issues. We appreciate your time and consideration on this matter.