California Finds Not All CBDs are Created Equal

In July 2018, the California Department of Public Health issued an FAQ Memothat states CBD sourced from industrial hemp may not be used in food. Though nuanced, the move is expected to be welcomed by cannabis growers and dispensaries that have invested substantial capital to be licensed and operate legitimate businesses in California. In turn, the memo may signal the state is protective of compliant businesses to the exclusion of others previously residing in a regulatory gray zone.

The FAQ Memo underscores the important (and often confused) legal distinction between “industrial hemp” and “cannabis” under California’s laws. “Cannabis” is defined broadly to include “all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis” and any derivative thereof, but exempt from this statutory definition are plants that are considered to be “industrial hemp.” The concentration of THC present determines whether the plant is considered industrial hemp or cannabis. In order to be considered industrial hemp in California, the Cannabis sativa plant may not exceed a THC concentration of 0.3%. In the FAQ Memo, California clarifies that food containing CBD derived from industrial hemp is regulated differently than edibles containing CBD derived from cannabis. Indeed, use of industrial hemp-derived CBD in food is prohibited by California just as it is under Federal law.

The FAQ Memo explains:

“The United States Food and Drug Administration 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 [THC] or CBD has been added. This is regardless of the source of the CBD – derived from industrial hemp or cannabis.

Therefore, although 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.”

The Distinction Between Edibles and Food

It is important to note that by virtue of its source, California considers cannabis-derived CBD “edibles” to be distinct from “food.” Though California acknowledges its policy regarding CBD edibles is not consistent with Federal law, it nevertheless stopped short of including industrial hemp-derived CBD food in its regulated cannabis program and in fact uses Federal FDA law to justify the prohibition.

Prior to California providing its interpretation of CBD food and CBD edibles in the FAQ Memo, merchants had a better opportunity to deliberately or unintentionally take advantage of ambiguities and nuances surrounding the state’s regulation of cannabis. This action clarifies the state’s policy on CBD sources for certain consumer products. How this policy will be enforced remains to be seen. It is also worth noting that at least two petitions have been submitted recently to FDA seeking permission to use hemp seed oil and hemp seed protein as a food additive. Although publicly available information does not specify the THC content of the plants from which these proposed food additives are derived (so we don’t know how they would be regulated under California law), FDA approval of either petition likely would necessitate a revision to these FAQs by CDPH.