Going in Circles Over ‘The Hemp Loophole’

Hemp seed

In July, the California Department of Public Health’s Food and Drug Branch (CDPH-FDB) threw the burgeoning cannabidiol (CBD) industry into some frenzy by issuing a revised FAQ on CBD in food products, declaring that it cannot be added to any, even if it comes from legal hemp. The move thus signaled California’s intention to block the sale of hemp-derived CBD products — almost already ubiquitous in the state, whether through health-food stores, juice bars, yoga studios, or beer breweries — in a national market which Hemp Business Journal projected to be worth nearly $2 billion in consumer sales by 2020.

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As Hoban explained, cannabinoids like CBD have never been scheduled. That means (as observed in the Ninth Circuit’s decision) that “the Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.”

“That makes it very clear that hemp-derived products—including cannabinoids—are not controlled substances at all,” asserted Hoban, whose team asserted that California’s CBD rule contradicts its own state law regarding hemp’s legality. An FAQ on the California Industrial Hemp Program website specifically defines hemp as legal, including “every… preparation of the plant.”

“These products are established in the state of California, and they’re lawful,” contends Patrick Goggin of Hoban Law Group. “Enforcement action would invite litigation.”