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California’s Health Rules Say CBD is Prohibited as an Additive. Hemp Advocates Are Crying Foul.

Hemp advocates are fighting back against an apparent change in stance by the California Department of Public Health that prohibits the use of industrial hemp-derived cannabidiol oil or CBD products in food.

While the state currently allows the manufacturing and sale of cannabis, the use of industrial hemp as the source of CBD to be added to food products is prohibited, according to the public health department.

The U.S. Hemp Roundtable, a national business association representing firms along the hemp supply and sales chain across the country, has sent a letter to the department expressing “significant concerns” over a recent FAQ document from the department clarifying the status of industrial hemp-derived CBD under the Controlled Substances Act (CSA), and the Federal Food, Drug, and Cosmetic Act.

The FAQ document notes that the department has received numerous inquiries from food processors and retailers interested in using industrial hemp-derived CBD oil or CBD products in food since the legalization of medical and adult-use marijuana in California.

A department spokesman contacted for comment for this article provided the following official statement: “CBD and CBD oil, whether sourced from industrial hemp or from cannabis, cannot be added to regular foods or beverages,” the statement reads. That decision could put a large portion of the edibles market in peril.

According to the statement, under U.S. Food and Drug Administration rules, CBD and CBD oil are prohibited as food additives, and because California adheres to FDA regulations, CBD cannot be added to food or drinks in the state.

CBD and CBD oil are allowable only in edible cannabis products that are produced according to the California Medicinal and Adult-Use Cannabis Regulations and Safety Act, according to the statement.

“CDPH is aware that there has been some confusion on the legal use of CBD and CBD oil since the legalization of medicinal and adult-use cannabis in California,” the statement reads. “We will continue to work with all of our partners, including industry and local public health departments, in order to educate them on CBD and CBD oil and to assist manufacturers as needed to assure compliance.”

Health department spokesman Matt Conens said the department is reviewing the letter from the U.S. Hemp Roundtable, but he offered no further comment.

Joy Beckerman, a vice president of the Hemp Industries Association who also sits on the NORML national board of directors, said, “There’s a major response from the hemp industry in what to do over this.”

Beckerman said she believes the department of health has misinterpreted the CSA. “I think they’re confused.”

The roundtable’s letter asserts that the FAQ document is incorrect to state that CBD derived from hemp and cannabis is a federally-regulated controlled substance, even when it is derived from industrial hemp. The letter notes that industrial hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry-weight basis is exempted from the CSA.

Further, “Current scientific research confirms that industrial hemp-derived CBD is safe in food, supplements, and beverages and has provided health benefits to millions of Americans, including thousands of Californians,” the letter states. “We are also not aware of any serious adverse events associated with the consumption of CBD.”

Lelehnia DuBois, publisher of Sensi Media Group, a pro-cannabis publication in Northern California, said CBD and its origins might be scaring off some state bureaucrats and politicians worried about running afoul of federal laws or the federal government.

“I think California might be a little afraid of CBD,” she said.

She is in the process of bringing to market a line of products that consists of skin care, an arousal spray, and topical pain cream that contain CBD, and she worries that further misinterpretation of what is permissible in California could impact her business.

“My entire market scheme has been based on integrating CBD,” she said. “I have multiple products that I can’t put to market the way I want to. I have seen so many decisions made based on fear and not knowing.”

David Rheins, founder and executive director of the Marijuana Business Association, also believes that the department of health’s move to issue the new FAQ document reflects the many levels of conflict around cannabis.

“This is representative of the tension and frustration in the marketplace when the federal and state regulations are not aligned,” Rheins said.

“CBD, which is legal even in the most [conservative]states, for it not to be accessible in the California marketplace, which started the medical marijuana revolution, is absurd,” Rheins said.

This isn’t the first time a government agency took it upon itself to offer an interpretation of what is and isn’t allowed under the CSA.

A federal regulator recently took aim at a California brewer over a line of beer made with CBD. The U.S. Alcohol and Tobacco Tax and Trade Bureau in early June came down on Black Hammer Brewing in San Francisco, which had been selling the CBD beer for more than a year when it was ordered to halt sales.

The primary reason behind the move wasn’t so much the CBD ingredient; it was because the trade bureau requires prior approval for non-standard beer ingredients.

The bureau had also just issued an updated FAQ sheet with the question, “Will [the bureau]approve any formulas or labels for alcohol beverage products that contain a controlled substance under Federal law, including marijuana?”

The bureau will not.

“Substances (such as tetrahydrocannabinols [THC], cannabidiols [CBD], or terpenes) that are derived from any part of the cannabis plant that is not excluded from the CSA definition of marijuana are controlled substances, regardless of whether such substances are lawful under State law,” the fact sheet states.

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