CBD in California: A Legislative Limbo

by Zach Allen March 25, 2021

Ever since the 2014 Farm Bill, the interpretation of laws surrounding industrial hemp and hemp-derived CBD has had heads spinning. Depending on who’s doing the interpreting—the hemp industry, cannabis advocates, lawyers, Congress, the DEA, the FDA, and a whole sideshow of state regulatory agencies—the debate continues about whether non-psychoactive cannabinoids are legal. The venue seems to be the greatest determinate, and California is currently one of the most perplexing settings regarding the legality of CBD.

As a refresher, let us first revisit the language of section 7606 of the 2014 Farm Bill, which is codified as U.S.C. 5490:

(a) In general

Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), chapter 81 of title 41, or any other Federal law, an institution of higher education (as defined in section 1001 of title 20) or a State department of agriculture may grow or cultivate industrial hemp if—

(1) the industrial hemp is grown or cultivated for purposes of research conducted under an agricultural pilot program or other agricultural or academic research; and

(2) the growing or cultivating of industrial hemp is allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.

(b) Definitions

In this section:

(1) Agricultural pilot program

The term ‘‘agricultural pilot program’’ means a pilot program to study the growth, cultivation, or marketing of industrial hemp—

(A) in States that permit the growth or cultivation of industrial hemp under the laws of the State; and

(B) in a manner that— (i) ensures that only institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp;

(ii) requires that sites used for growing or cultivating industrial hemp in a State be certified by, and registered with, the State Department of agriculture; and

(iii) authorizes State departments of agriculture to promulgate regulations to carry out the pilot program in the Statesin accordance with the purposes of this section.

(2) Industrial Hemp

The term ‘‘industrial hemp’’ means 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.

(3) State department of agriculture

The term ‘‘State department of agriculture’’ means the agency, commission, or department of a State government responsible for agriculture within the State.

Simply put, two significant points can be taken from this law: first, under the conditions of (1) and (2) under (a), the 2014 Farm Bill preempts the Controlled Substance Act, and therefore all federal regulatory departments (DEA, FDA) must defer to it; and second, states are allowed to make industrial hemp laws.

To reiterate, according to federal law, under the conditions of the 2014 Farm Bill, the Farm Bill in conjunction with the state’s law must be referred to. Not the DEA or FDA.

Just to drive the point home even further, in a response from the U.S. Court of Appeals in April 2018 to a petition by the Hemp Industry Association, et al., to review the DEA’s final ruling on a new drug code for marijuana extract (including CBDs), the court reminded petitioners that “[t]he Agricultural Act contemplates potential conflicts between the Controlled Substances Act and preempts it.” Whatever rulings the DEA makes about marijuana regarding the C.S.A., if the “marijuana” in question, that is if it is hemp-derived CBD that meets the conditions of the 2014 Farm Bill, the DEA has no authority.

So why and how does California justify banning non-psychoactive CBD? A state where recreational and medicinal marijuana is legal. A state in a country that recognizes industrial hemp apart from cannabis and marijuana. Perhaps a look at their legislative history and regulatory agencies might clear things up.

Legislative History

California has a history of cannabis reform dating back to the 1970s. Decriminalization and early movements for medical marijuana paved the way for the legalization of medical and recreational marijuana. With such progressive cannabis legislation, it’s difficult to comprehend why CBD is currently banned in California.

Decriminalization

Moscone Act of 1975—Senate Bill 95, which treats small amounts of marijuana as a civil, rather than a criminal, offense. It made possession of one ounce a misdemeanor with a $100 fine.
Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000)—Passed with 61% of votes, allowing first and second offense drug violators to be sent to drug treatment as opposed to possible trial and incarceration.
Senate Bill 1449 (2010)—Signed into law by Governor Schwarzenegger and further reduced possession of one ounce or less of cannabis to an infraction. This meant no more than a $100 fine, no mandatory court, and no criminal record. Basically, the same as a traffic violation.

Medical Cannabis Legislation

Proposition 216 (The Compassionate Use Act of 1996)—A statewide ballot initiative approved with 56% of the vote. It legalized medicinal cannabis (including cultivation) for patients with a physician’s recommendation for cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
State Bill 420 (2003)—A bill establishing the identification card system for medical marijuana patients.

The Road to Recreational Legalization

Proposition 19 (1972)—Also known as the California Marijuana Initiative, it allowed for the use, possession, and cultivation of cannabis, but not commercial sales. Although the initiative was defeated, it was the first time a state would vote to legalize cannabis.
Marijuana Control, Regulation, and Education Act (2009)—An act that would eliminate penalties for use, possession, and cultivation of marijuana for anyone 21 or older. It was approved by the Assembly Public Safety Committee in 2010 but failed to reach the assembly floor. It did mark, however, the first time in U.S. history that a bill legalizing marijuana was passed by a legislative committee.
Proposition 19 (2010)—An initiative that would have legalized the use, possession, cultivation, and regulation of sales of marijuana. Due in large part to opposition from California police organizations, it failed to pass with 53.5% of voters voting “No.”
Proposition 64 (2016)—The Adult Use of Marijuana Act, which passed with 57% of the vote on November 8, 2016. It allows adults to possess up to one ounce of cannabis for recreational use. Up to six live plants can be grown individually or more with a license for commercial purposes. It also legalized the sale of cannabis in both dry and concentrated form.

Says Who?

The current ban on CBD in California falls under the purview of the California Department of Public Health’s Food and Drug Branch (CDPH-FDB). Although the manufacturing and sales of cannabis products (including edibles) are legal, hemp-derived CBD products are considered “food” and are therefore regulated differently. But, one might ask, why can’t CBD be sold alongside cannabis edibles? Cannabis edibles are sold under the Medicinal and Adult‐Use Cannabis Regulation and Safety Act (MAUCRSA) and regulated by the CDPH’s Manufactured Cannabis Safety Branch—so not considered “food.” And as a final blow, the Bureau of Cannabis Control (BCC), while it will allow MAUCRSA-licensed retailers to sell non-cannabis products, it explicitly forbids the selling of stand-alone hemp-derived CBD in stores that are licensed to sell cannabis.

The CDPH-FDB claims to be following the FDA’s lead in its decision to ban CBD. But to what logic? Marijuana is still illegal at the federal level. It seems strange that a state agency would cite a federal agency for a decision to ban non-psychoactive CBD, but dismiss federal mandate altogether and legalize it’s more controversial and psychoactive cousin, Marijuana. And in the very least, if California wanted to follow big brother on this one, it could at least allow hemp-derived CBD that align with the conditions of the 2014 Farm Bill to be sold.

CBD is already in stores and restaurants all over California. The blowback that will result from the ban is unclear. Will there be enforcement? Will the will of the electorate or the hemp industry challenge the ban? The one thing that is clear, for right now, is that CBD in California is stuck in legal limbo.

References

“Laws and Regulations.” California Cannabis Portal. Web. Accessed 21 August 2018. https://cannabis.ca.gov/laws-regulations/

7 U.S. Code § 5940 - Legitimacy of industrial hemp research. Legal Information Institute, Cornell Law School. Web. Accessed 11 August 2018. https://www.law.cornell.edu/uscode/text/7/5940

“On Petition for Review of a Final Rule of the Drug Enforcement Administration.” U.S. Court of Appeals. 30 April 2018. Web. Accessed 26 August 2018. https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/04/30/17-70162.pdf

“FAQ—Industrial Hemp and Cannabidiol (CBD) in Food Products.” California Department of Public Health. 6 July 2018. Web. Accessed 22 August 2018. https://www.cdph.ca.gov/Programs/CEH/DFDCS/CDPH%20Document%20Library/FDB/FoodSafetyProgram/HEMP/Web%20template%20for%20FSS%20Rounded%20-%20Final.pdf

Nichols, Chris. “Pot 101: Facts you should know about California’s legal marijuana.” Politifact. 5 January 2018. Web. Accessed 22 August 2018. https://www.politifact.com/california/article/2018/jan/05/pot-101-facts-you-should-know-about-californias-le/

Shortt, Daniel. “Hemp-Derived CBD Not Allowed in Food (or Pretty Much Anything Else) in California. 17 July 2018. Canna Law Group. Web. Accessed 21 August 2018. https://www.cannalawblog.com/hemp-derived-cbd-not-allowed-in-food-or-pretty-much-anything-else-in-california/

Pomranz, Mike. “California Isn’t as Cool with CBD as You Might Think.” Food & Wine. 31 July 2018. Web. Accessed 22 August 2018. https://www.foodandwine.com/california-cbd-laws

“Official Hemp CBD Ban in California and United States” Edibles Magazine. 31 July 2018. Web. Accessed 23 August 2018. https://ediblesmagazine.com/tag/hemp-cbd-ban-in-california/

“Cannabis in California.” Wikipedia. Web. Accessed 21 August 2018. https://en.wikipedia.org/wiki/Cannabis_in_California