HAS CALIFORNIA BANNED CBD IN FOOD?
On July 6th 2018, The California Department of Public Health (CDPH), Food and Drug Branch (FDB), released a new FAQ that grabbed everyone’s attention, particularly those who manufacture or distribute edibles. The question of the moment is, Has California just banned CBD infused food and drink products? We’ve taken a good look at the details and this is the deal…
We’ll begin by first stating that we’re not a qualified authority in cannabis law. Anyone concerned about the legal status of the CBD infused edible they make or sell should get in touch with a legal specialist. At the same time, we’ve decided to publish this post, because we recognize just how important it is for those people trying to meet the many new regulations that have come into play in California. So, first up is a citation of the exact phrase published in the CDPH’s FAQ that’s causing such concern:
“[A]lthough 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.”
– From CDPH’s FAQ page
So the problem that California has directly relates to hemp-derived CBD. The FAQ clearly states that, until further notice, the use of hemp derived CBD in food products is banned. It’s reasoning? The Food and Drug Administration (FDA) has not approved CBD as a food, food ingredient, food additive, or dietary supplement, and until it does, CBD derived from industrial hemp is off limits. However, just to make sure it’s clear, if you happen to be a licensed cannabis cultivator in California, then you can still use cannabis derived CBD in your products (including edibles), because the Manufactured Cannabis Safety Branch (MCSB) is the regulatory authority that governs licensed cannabis cultivators in this state.
With the basics out of the way, we also think it’s worth stating that we’re not altogether convinced the CDPH has considered how the contents of its recent FAQ clashes uncomfortably with California and Federal law. Let’s break it down…
1. What forms of industrial hemp derived products will and will NOT be allowed in food in California?
Will be allowed in food (without any claim for health benefits):
• Seeds derived from industrial hemp
• Industrial hemp seed oil or hemp seed oil derived from industrial hemp
Will NOT be allowed in food:
• Any CBD products derived from cannabis
• Any CBD products including CBD oil derived from industrial hemp
• Hemp oil that is not derived from industrial hemp seeds
• Industrial hemp seed oil enhanced with CBD or other cannabinoids
– From CDPH’s FAQ page
In FAQ #1 of the CDPH’s memo, the second bullet point on the NOT allowed list prohibits: “Any CBD products including CBD oil derived from industrial hemp”. This prohibition blatantly contradicts the allowed use of industrial hemp in edibles as laid out by California’s industrial hemp statute. What’s more, the California Health and Safety Code doesn’t list industrial hemp as a controlled substance. Also, it’s important to consider that while CBD derived from industrial hemp is now banned in edibles in California, it remains legal on a national level. There’s little doubt that these issues will spark up further areas of contention over the coming months. Surely, it’s a good idea to have all legal authorities smoking from the same roll-up, right?
If industrial hemp seed oil is ok to use in edibles in California, as stated in the FAQ, then what do manufacturers do about the CBD components that are just naturally found in industrial hemp and, therefore, in industrial hemp seed oil too? What happens to those edibles that aren’t consciously made with a CBD that’s “derived from” industrial hemp (like CBD isolate), but that include traceable levels of naturally occurring CBD all the same? Where does the CDPH want to draw the line? It’s a little vague to say the least.
Our advice to manufacturers of edibles in California is to get in touch with a local legislative representative just to make sure you’re not doing anything you shouldn’t be.
Significant year so far for cannabis advocates in Vermont. On January 11, Governor Phil Scott approved Act 86 and decriminalized cannabis.
New rules for CBD edibles in California. Let's take a look at what it all means and if California really just banned CBD edibles.
A follow up post on the California Compliant Cannabis Packaging article. This compliance article covers the rules for compliant packaging of small, child-resistant and edibles packaging.