Hemp Derived CBD No Longer a Permissible Food Additive in California

"The use of industrial hemp as the source of CBD to be added to food products is prohibited." CDPH-FDB
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CBD Oil in California: The Tides Are Changing

Well, this is frankly shocking news. The State with arguably the Country’s most historic and progressive cannabis laws has come down harshly on the CBD industry and in a recent revision to an FAQ on CBD and food, the California Department of Public Health’s Food and Drug Branch (CDPH-FDB) stated the following:

"California incorporates federal law regarding food additives, dietary use products, food labeling, and good manufacturing practices for food…Currently, the United States Food and Drug Administration (FDA) has concluded that it is a prohibited act to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which tetrahydrocannabinol (THC) or CBD has been added. This is regardless of the source of the CBD – derived from industrial hemp or cannabis. Therefore… the use of industrial hemp as the source of CBD to be added to food products is prohibited. "

Which definition does this CDPH-FDB directive use to define “Industrial Hemp”?

According to the FAQ, Industrial Hemp is,

“a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.”

Just in case you had any illusions of circumventing this otherwise cumbersome law, the FAQ further defines in as broad a manner as possible, what precisely qualifies as food:

(a) Any article used or intended for use for food, drink, confection, condiment, or chewing gum by man or OTHER ANIMAL.

(b) Any article used or intended for use as a component of any article designated in subdivision (a).

The “Other Animal” language is chiefly important for those companies and individuals who are in the business of selling pet food with CBD. Indeed the FAQ explicitly states, “The definition of food INCLUDES PET FOOD, but does not include products containing cannabis (which are, instead, cannabis edibles).” Therefore, if you are in the business of manufacturing and/or selling CBD infused pet food in California, it’s time to revisit your business plan.

CBD Oil vs. Hemp Seed Oil

Interestingly, this CDPH-FDB FAQ explicitly contrasts CBD Oil and Hemp Seed Oil, the former being an impermissible addition to food while the latter, falling outside of this prohibition. Indeed, this issuance notes that the two are in fact very different products and because hemp seed oil is merely derived from the seeds of types of the Cannabis sativa L. plant (and therefore containing mere trace amounts of CBD), food grade industrial hemp seed oil is still a permissible additive, as long as the seed oil is not enhanced with CBD or other cannabinoids. However, if the additive is CBD or CBD Oil, it “cannot be used as a food ingredient, food additive, or dietary supplement.”

CBD From Hemp vs. CBD From Cannabis

Here comes an interesting twist: if a cannabis edible (from a California licensed cannabis cultivator) were to contain CBD derived from cannabis, this CBD infusion would not violate this new FAQ standard because the cannabis good would be governed instead by California’s Manufactured Cannabis Safety Branch (MCSB) regulations! However, if the CBD found in an otherwise neutral food item were to be derived from Industrial Hemp, the item would not be legal in the State of California.

The irony here is rich: The psychoactive part of the Cannabis plant (governed by MCSB) is permissible but the CBD components of the plant that are purely focused on health benefits is impermissible.

The Future of Industrial Hemp CBD in California

Our CBD lawyers were truly dismayed upon reading this CDPH-FDB FAQ, which is, no matter how you spin it, a severe blow to the California CBD community. The FAQ makes clear that it is waiting on the FDA (or a more substantive ruling from the State of California) to explicitly rule that industrial hemp-derived CBD oil, and all associated CBD products, can legally be introduced to food items, before any change to this restrictive directive can be expected. Stay tuned.

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