oregon hemp nuisance litigation
Nuisance pollination can cause a row.

In recent posts, we’ve discussed cases where a neighbor to a cannabis grow sued the grower for nuisance, claiming that growing cannabis interfered with the neighbor’s use of their land. See here, here, here, here, here, and here. These lawsuits relied on the non-cannabis landowner’s claims that the federally illegal cannabis business caused harm because of odor, disruptive activity, and diminution of property values.

As of last week, we have another variation on the nuisance theme. On August 31, 2018, Jack Hempicine LLC (“Hempicine”), a Polk County hemp grower, sued fellow hemp farmers for nuisance and other torts. Unlike the previous cases, this case claims that the harm to the property was caused when the other farms cross-pollinated the Hempicine farms and ruined its crops. Jack Hempicine LLC v. Leo Mulkey Inc., Case No. 18CV38712, Polk Cty. Sup. Ct.

In this case, Hempicine alleges:

Cross-pollination is a significant risk in the hemp growing industry. There are two specific risks. First, male plants that contain higher THC levels can pollinate female hemp plants that originally contain low THC levels. The resulting seeds produce plants with highest levels than the original female plant, which means the resulting plants also have lower amounts of CBD and CBG. Second, pollinated female plants may produce both male and female seeds. Female seeds are more desirable because female plants are grown to full maturity and harvested at the end of the season, whereas male plants die off shortly after pollination… The risk associated with cross-pollination is well known in the hemp and cannabis growing industries.”

According to the complaint, Hempicine began producing hemp and hemp seed in Polk County in 2015 and 2016. In 2016, Hempicine allegedly told defendants that Hempicine only produced feminized seed, warning the defendants of the risks from cross-pollination from male plants. Hempicine says that after this meeting, the defendants grew male hemp plants that cross-pollinated Hempicine’s female plants, giving them high levels of THC and making them unmarketable. The Hempicine complaint calculates its damages for loss to the 2016 and 2017 crops to exceed $8 million, and says that it will amend its complaint to include damages from the lost 2018 crop later.

Hempicine’s complaint seeks recovery under four separate legal theories. First, it alleges that the defendants breached a duty of care to Hempicine and was thus negligent. Second and third, it alleges that the defendants acted negligently or recklessly in growing male hemp plants on their property, and thus are liable for trespass or nuisance. Fourth, the complaint alleges that defendants grew male plants in the vicinity of the Hempicine farms that they knew would likely result in cross-pollination, and thus have intentionally interfered with Hempicine’s economic relations.

This is not the first time this issue has arisen. During the Oregon Legislature’s efforts to pass hemp legislation, cannabis producers noted the risk of cross pollination between cannabis and hemp, which of course are just two varietals of the cannabis sativa plant. Among other things, some cannabis producers urged the legislature to create separate agricultural zones for hemp and cannabis (which didn’t happen). There are also a number of lawsuits involving similar claims of cross-pollination by GMO crops. Hopefully this industry can find a way for hemp and marijuana farms alike to be neighbors.

hemp cbd transport
CBD transport routes can (and should) get weird.

The legal status of cannabidiol (CBD) has long been complicated. The Agricultural Act of 2014 (2014 Farm Bill) allowed for the cultivation of “industrial hemp”, defined as the cannabis plant that contains less than .03% tetrahydrocannabinol (THC) on a dry weight basis, as long as that hemp was grown pursuant to a state’s guidelines. The 2014 Farm Bill lead to a massive influx of industrial hemp-derived products containing CBD (Hemp-CBD). However, not all states have legalized industrial hemp, making the U.S. a quilt of different rules and regulations on industrial hemp and Hemp-CBD. We’ve written about how state law impacts Hemp-CBD, in regards to where a distributor can sell its products. State law considerations are also relevant to consider when transporting Hemp-CBD.

Consider the case of Anita Maddux. According to Planet Jackson Hole, Maddux was driving through Wyoming en route to Montana to care for her sick mother when she was pulled over for her expired California license plates. It turns out Maddux was driving with an expired license, no insurance, and a 10-millimeter bottle of CBD she obtained from a health store in New Mexico. At the Teton County Jail, police tested the CBD oil for THC. The test results confirmed the presence of THC but the amount of THC. Maddux ended up spending 36 hours in jail before being released on a $1,000 bond.

Recently, the Jackson Hole News & Guide reported that Teton County Deputy Prosecutor Clark Allen intended to dismiss the felony drug charge. However, Allen noted that “I don’t want to send the message that we will not pursue these cases[.] We will pursue these types of cases under the right circumstances. This case just isn’t it.” Allen went on to acknowledge that Wyoming law is not clear when it comes to CBD oils: “Our laws are way behind the curve with the products we’re dealing with[.] A citizen takes a big risk when they possess these products.”

A similar story played out in Cary, South Carolina where Ayman Tamim Nu Mann Alqazah, a wholesaler of e-cigarettes and other similar goods, was charged with trafficking marijuana after a box of CBD-infused gummies he ordered popped open while in transit. The News & Observer reports that box opened while it was transferred from a truck in Florida. Alqazah’s order totaled four boxes weighing 241 pounds. Alqazah now faces drug trafficking charges.

Hopefully, like Maddux, Alqazah’s charges will eventually be dismissed. Regardless of the outcome, Alqazah and Maddux show that shipping CBD products comes with substantial risk. Though many states have legalized the cultivation of industrial hemp in some form, the law surrounding Hemp-CBD remains confusing. Additionally, enforcement action is sporadic. Often, Hemp-CBD products are distributed without incident. Other times, law enforcement will seize Hemp-CBD products to confirm that they do not contain THC and then will either destroy or return the products depending on test results. Other times, as was the case with Maddux and Alqazah, criminal charges are levied against individuals who possess Hemp-CBD.

All of this means that businesses must carefully consider how their products reach consumers. For example, imagine that Hemp Co. is planning to distribute Hemp-CBD. Hemp Co. sources its industrial hemp from a farm in Medford, a small town in Southern Oregon. Hemp Co. has a large order to fill for a natural food store in Billings, Montana. Hemp Co. decides that the fastest and cheapest method of delivery is ground shipping through Idaho. However, according to a 2015 informal opinion from the Idaho Attorney General,  the state makes no distinction between industrial hemp and marijuana. Therefore, Hemp-CBD, even without the presence of THC, is not permitted in Idaho. Even though Hemp Co.’s products come from a farmer who cultivates in-line with Oregon’s industrial hemp program (and relevant federal law), that does not insulate Hemp Co. from liability if the shipment is inspected by Idaho State Police. Even if Hemp Co. re-routes to travel through another state, it still would likely have to pass through Idaho, Wyoming, South Dakota, or North Dakota. Though not all of these states are as “bad” as Idaho, none of them have CBD-friendly laws. Paying for air-shipment may seem like a solution, but there are numerous regulations and transit-company polices that Hemp Co. must deal with. All of this requires careful planning and risk management.

I was recently watching an old episode of the TV show Kung Fu, which chronicles Caine, a young American played by David Carradine, training to be a Shaolin Monk traveling the Old West. At one point Caine asks his teacher Master Tae “what is the best way to deal with force?” Master Tae responds, “as we prize peace and quiet above victory, there is a simple and preferred method. . . Run away.” Hemp-CBD distributors should heed this advice and “run away”, to the best of their ability, from states like Wyoming and Idaho.

Transporting Hemp-CBD is inherently risky. CBD businesses should consult with attorneys and logistic specialists to plan ahead and avoid running into the same problems as Maddux and Alqazah.

cannabis cbd alcohol beerThis past year, the country has witnessed widespread interest in the use of cannabis in its nutraceutical (when added to food or drinks) form. Cannabidiol (“CBD”), the non-psychoactive chemical compound found in the cannabis plant, has gained great popularity among alcohol beverage companies. The growing popularity of CBD-infused products combined with their mainstream nature has given alcohol beverage companies the false impression that blending CBD into their products is an easy process. This post bursts the myth by highlighting the regulatory labyrinth into which alcohol beverage manufacturers must venture to enter this growing, popular market.

Alcoholic beverages are regulated by federal and state law. Consequently, beer, wine and spirits producers are generally accustomed to navigating rules, various forms of licensure, and modes of compliance related to their industry. Their familiarity with comprehensive regulations makes alcohol beverage companies well equipped to navigate the intersection between alcohol and cannabis, which is heavily regulated at the state level.

Unlike alcohol, though, many forms of cannabis are strictly federally prohibited. As such, “marijuana” and “tetrahydrocannabinols” (THC) are listed on Schedule I of the Controlled Substances Act (“CSA”). The CSA defines “marijuana” as:

“all parts of the Cannabis sativa L. plant whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”

The CSA exempts certain parts of the cannabis plant from the definition of marijuana, including hemp-derived CBD products that are manufactured with hemp grown as part of a Farm Bill-authorized state pilot program. Accordingly, only CBD derived from industrial hemp (“Hemp” or “Hemp-CBD”) is allowed in the formulation of CBD-infused alcoholic beverages.

The U.S. Alcohol and Tobacco and Trade Bureau (“TTB”)’s 2000 Hemp Policy (the “Policy”) dictates how manufacturers may use Hemp-CBD in their alcohol products. The Policy sets forth the requirements for formulas and statements of process producers may use. Although the TTB permits the use of Hemp derivatives in alcohol products, the federal agency strictly prohibits producers from using “depictions, graphics, designs, devices, puffery, statements, slang, representations, etc. implying or referencing the presence of hemp, marijuana, and other controlled substance; or any psychoactive effects.” In other words, producers should refrain from using the term “CBD” in their formula or statement of process as the TTB seems to interpret the term as unlawful under federal law.

In addition to submitting the list of ingredients and the method of manufacture they intend to use, producers must provide the TTB with an analysis conducted by a U.S. lab of the hemp components that will be used in the product. A detailed description of the method employed by the U.S. lab must also be presented to the TTB.

The TTB will approve the formula or statement of process if the finished product does not contain a controlled substance. Once the hemp components have been tested for controlled substances, producers must ensure that detailed records are kept at the manufacturing premises for inspections, which we hear may occur as early as within the first month of production.

Once a producer receives TTB approval, which may take up to two years, the producer must then comply with state rules and regulations. In Oregon, for example, manufacturers must provide proof to the Oregon Liquor Control Commission (“OLCC”) that they have met the TTB formula requirement and meet the OLCC labeling requirements before they can manufacture and sell the infused beverage in the state. Oregon beverage producers who intend to sell their infused product outside of Oregon must also show the OLCC that they comply with the TTB labeling requirements.

As this post underlines, obtaining approval for the manufacture and sale of hemp-CBD infused alcoholic beverages is a complex process, due primarily to the uncertain nature of hemp-CBD laws. Therefore, it is crucial for any company intending to enter this market to consult with an experienced, well-versed law firm (like us!) prior to moving into this trending space.

hemp california cannabis
Coming soon?

Last week, California’s industrial hemp bill, SB 1409, received a unanimous passing vote from committee. We last wrote about SB 1409 in March, and the legislation has undergone some changes, warranting a new summary of what has been proposed.

Currently, California law regulates the cultivation of industrial hemp, and specifies certain procedures and requirements on cultivators, not including an established agricultural research institution. Existing law defines “industrial hemp,” via the California Uniform Controlled Substances Act, as a fiber or oilseed crop, or both, that is limited to the non-psychoactive types of the plant Cannabis sativa L. and the seed produced from that plant.

Existing California law also requires that industrial hemp only be grown by those on the list of approved hemp seed cultivars. That list includes only hemp seed cultivars certified on or before January 1, 2013. Industrial hemp may only be grown as a densely planted fiber or oilseed crop, or both, in minimum acreages. Growers of industrial hemp and seed breeders must register with the county agricultural commissioner and pay a registration and/or renewal fee.

SB 1409 proposes to delete the exclusionary requirement that industrial hemp seed cultivars be certified on or before January 1, 2013. Additionally, “industrial hemp” would no longer be defined restrictively in the California Uniform Controlled Substances Act as a fiber or oilseed crop, and the bill would delete the requirement that industrial hemp be grown as a fiber or oilseed crop, or both. We initially presumed this would allow cultivators to harvest hemp for CBD derivation, and related use, but given the recent FAQ issued by the California Department of Public Health effectively banning the sale of CBD food products, how hemp-derived CBD in California will be regulated in the future remains to be seen.

SB 1409 would also authorize the state Department of Food and Agriculture to carry out, pursuant to the federal Agricultural Act of 2014, an agricultural pilot program for industrial hemp. Twinning a state-sanctioned pilot program with licensed, private cultivation is a model that has worked well in other states, like Colorado and Oregon.

Since its last incarnation, some other provisions have been added to beef up SB 1409, including more detailed requirements for sampling and laboratory testing of industrial hemp. The bill will provide new time frames for sampling of industrial hemp and destruction of hemp that exceeds the 0.3% THC limit.

Also of note, and sort of unfortunately, the bill adds a provision to the Food and Agricultural Code giving local jurisdictions the ability to ban industrial hemp cultivation in limited circumstances:

“A city of county may, upon a finding that pollen adrift from industrial hemp crops may pose a threat to licensed cannabis cultivators permitted by the city or county, prohibit growers from conducting, or otherwise limit growers’ conduct of, industrial hemp cultivation in the city or county by local ordinance, regardless of whether growers meet, or are exempt from, requirements for registration pursuant to this division or any other law.”

As stated above, we’ll be very interested to see how the issue of industrial hemp-derived CBD plays out in California, and whether the passage of SB 1409 would do anything to change it. In the meantime, if you are unfamiliar with the current legal status of hemp-derived CBD food products in California, we recommend reading the CDPH’s FAQ and checking out our post on the topic here. We’ll continue to monitor this bill and all hemp-related developments in California closely.

For more on industrial hemp generally (including CBD), check out our wealth of archived posts here.

marijuana cannabis Oregon packaging labeling
Don’t worry, your favorite symbol isn’t going anywhere.

Last year, the Oregon Legislature passed Senate Bill 1057, which transferred cannabis labeling authority from the Oregon Health Authority (“OHA”) to the Oregon Liquor Control Commission (“OLCC”). The new rules, which became operational on August 15, 2018, merged the OHA rules with those of the OLCC and further clarified the labeling and packaging regulations. Overall, this is a good thing.

Although the new regulations do not drastically differ from those under the old rules, OLCC licensees (i.e., recreational marijuana producers, processors, wholesalers, and retailers, including those processing and selling hemp products) and OHA registrants (i.e., medical marijuana growers, processors, and retailers) will need to familiarize themselves with these revisions and update their labels to be in compliance by April 1, 2019. At that point, all marijuana items transferred to dispensaries or retail shops will have to be packaged and labelled pursuant to the new rules.

To comply with these new standards, existing licensees will need to resubmit their label and package applications for pre-approval before the April 1, 2019 deadline. Also note that all new label and package applications submitted for pre-approval as of August 15th will be reviewed and evaluated by the OLCC under these rules. Typically, pre-approval takes 2 to 4 weeks but can occasionally last longer.

The most noticeable changes and clarifications to the labeling and packaging rules are as follows:

  • The word “consumer” now excludes “a patient or designated caregiver.”
  • The new rules explicitly provide that they apply to marijuana items and industrial hemp products sold to consumers, patients, or designated primary caregivers. Consequently, the new rules require a clear label of whether the product contains marijuana or hemp. If it contains both, then the label must identify the item as a marijuana item.
  • Marijuana items and industrial hemp products must be packaged in a container that is “resealable and continually child-resistant.”
  • If the product is an industrial hemp commodity or product processed by a licensee, the principal display must include the hemp symbol in place of the marijuana universal symbol.
  • The new rules define “added substances” to mean “any additional component or ingredient added to usable marijuana, cannabinoid concentrate or cannabinoid extract during or after processing that is present in the final product. This includes added flavors, terpenes, and any substances used to change viscosity or consistency of the cannabinoid product.”
  • The new rules no longer provide a distinction for “flag labels.” Instead, the new regulations refer to “small container labels and “tiny container labels,” which have their own requirements.
  • The new rules no longer require test batch numbers on labels.
  • The new rules replaced the font size and font type requirements (at least 8 point Times New Roman, Helvetica, or Arial font) with a provision that the labels display a “legible font that is easy to read and contrasts sufficient with the background and is at least 1/16th of an inch in height based on the uppercase ‘K’.”
  • The new rules rephrased some of the warning requirements to read as follows: “Do not drive a motor vehicle while under the influence of marijuana.” And, “Keep out of reach of children.” (You are no longer required to mention animals.)

Note that while labels must comply with the new rules by April 1, 2019, marijuana items on dispensary or retail shelves that meet old packaging and labeling rules under the OHA will be allowed for sale until December 31, 2019. However, as of January 1, 2020, all marijuana items will have to meet the OLCC packaging and labeling rules and all items with labels that meet the pre-August 15, 2018 rules will be removed from the market.

So, if you are licensed to produce, process or sell marijuana or industrial hemp products in Oregon be sure to review the new rules now to have ample time to update your labels by the April 1, 2019 deadline and avoid any civil penalty, which can go up to $500 per day—Ouch!

cannabis hemp CBD
Don’t miss this one!

Cannabidiol (“CBD”) products are suddenly everywhere. But as much as opportunity and possibility have opened in the hemp-derived CBD industry, so too have legal pitfalls and snares that can confuse just about anyone breaking into this new market. When it comes to navigating the trails that are still being blazed, many are left wondering, “Is it legal or not?”

At a time when the popularity of CBD and hemp products meets legalization, the importance of this question cannot be overstated. Unfortunately, the answer is not an easy one. Individuals and companies alike are stepping forward with innovative ideas and using these products in health supplements, topical ointments, and even food and beverages. What they often find at all stages of production (manufacturing, distribution, and marketing), is that the law can be ambiguous and varied, especially when divided by state lines and the unavoidable intersections with federal law.

Our attorneys have been at the forefront of the struggle to effectively interpret and understand these challenging legal circumstances. Tomorrow,  August 16th, at 11 am PST, Harris Bricken attorneys Daniel Shortt and Alison Malsbury will present a webinar entitled “CBD Legal or Not: How State and Federal Laws Govern the Manufacture, Marketing & Distribution of CBD Products.”

Whether you are an individual or part of a company, working with U.S. or foreign grown products, an attorney or a government official, this webinar will equip you with the knowledge you need to successfully untangle the legal knots that may be preventing you or your clients from realizing the full potential of this industry. Our attorneys will discuss current state and federal laws, marketing do’s and don’ts, trademark protections, and FDA regulations. They will also address audience questions throughout the presentation.

To register, please go here.

In the meantime, for more on CBD law, check out the following:

At the end of June, the U.S. Senate passed its version of the 2018 Farm Bill, which included the full text of McConnell’s Hemp Farming Act of 2018. If the Senate version is enacted, hemp and derivatives, extracts, and cannabinoids derived from hemp would be treated as agricultural commodities and removed from the purview of the Controlled Substances Act and the Drug Enforcement Administration. Though this is certainly exciting news, it’s not quite time to pop the CBD-infused champagne just yet. 

Both the Senate and the House have passed their own versions of the Farm Bill.  The Senate included the full text of McConnell’s Hemp Farming Act, but the House version was silent on hemp. The Farm Bill covers a vast range of agricultural issues including subsidies and crop insurance. Now the House and Senate must harmonize their versions of the Bill, including the provisions that relate to industrial hemp.

The House and Senate passed motions to proceed to conference for their respective the Farm Bills. Both chambers will need to agree on which portions of each bill will be included in a conference agreement. U.S. Hemp Roundtable compiled a list of conferees for the House and Senate. The House is represented by 47 conferees and the Senate is represented by 9 conferees.

The 9 Senate conferees show that the both Republicans and Democrats will be represented. The Senate Republicans will include Pat Roberts (Kan.), John Hoeven (N.D.), Joni Ernst (Iowa), John Boozman (Ark.), and Senate Majority Leader Mitch McConnell (Ky.). Senate Democrats Debbie Stabenow (Mich.), Patrick Leahy (Vt.), Sherrod Brown (Ohio). and Heidi Heitkamp (N.D.) will also negotiate on behalf of the Senate.

McConnell’s involvement is important for industrial hemp. McConnell was instrumental in passing the 2014 Farm Bill’s industrial hemp provision and continues to advocate for legalizing hemp. He even recently toured a hemp cultivation facility in Kentucky, as reported by the Lexington Herald Leader. He also happens to be the Senate Majority Leader making him one of the most powerful politicians in the country.

Here’s what McConnell had to say about the 2018 Farm Bill and his decision to sponsor the Hemp Farming Act:

I have proudly served on the Agriculture Committee since my first day in the Senate and know exactly how important this legislation is to agricultural communities across Kentucky, so as Majority Leader, I put myself on the Conference, and we’re ready to get to work to ensure the future of American agriculture. I will advocate for Kentucky’s multi-billion-dollar agriculture industry that supports thousands of good jobs and families in nearly every corner of the Commonwealth. Additionally, I will strongly advocate to legalize industrial hemp. I’m optimistic that my Hemp Farming Act, which I secured in the Senate bill, will be included in the final bill sent to the President for his signature. I am also glad to have the support of Congressman Comer on the Conference for legalizing industrial hemp.

If the House and Senate reach a resolution, they will issue a Conference Report that will be sent back to the House and Senate for final passage. If the passed in both chambers, the Bill would head to the Donald Trump’s desk for signature. For industrial hemp farmers, the sooner this happens, the better.

The 2014 Farm Bill is set to expire on September 30 or at the end of the applicable crop year. Hemp farmers operating under the 2014 Farm Bill will certainly be watching carefully to see whether the 2018 Farm Bill is signed prior to that date. If the 2014 Farm Bill expires, so too will the legal basis for cultivating industrial hemp under federal law. It’s possible that the 2014 Farm Bill will be extended in the event that the 2018 Farm Bill fails to pass. McConnell is hoping that the conference can reach agreement by Labor Day.

In the past year, we have seen a remarkable uptick in individuals and businesses pursuing Oregon industrial hemp production, processing and sale. This accelerated interest has coincided with the CBD craze, and fortunately, Oregon has been working steadily to build out its hemp program over the past year or two. Today’s blog post answers some questions commonly fielded by our Oregon cannabis lawyers, and summarizes the state of the state with regard to hemp.

What is the latest, as far as program rules?

The rules have undergone steady revision for a few years now. The most recent changes are shown in the Oregon Department of Agriculture’s (“ODA”) proposed rule changes, which should take effect very soon. These updates will stem from bills passed by the legislature earlier this year, which we wrote about back in March. A few of the biggest pending changes include the requirement that industrial hemp and seed can only be transferred to another ODA registrant or qualifying Oregon Liquor Control Commission (OLCC) licensee (in accordance with certain OLCC rules), and that any hemp sold to a consumer has to be tested by an OLCC licensed lab.

How easy is it to get a hemp handler’s permit?

It’s not quite as easy as it used to be, but it’s not bad, and it’s still faster and cheaper than getting an OLCC license. In our office, we have paralegals process these applications, and both grower and handler registrations often issue in a month or less when the client is organized.

Who can ODA permittees sell to, in the OLCC system?

ODA handlers can only sell to OLCC processors with a current OLCC endorsement to receive ODA hemp. Those processors can then move the industrial hemp products along the supply chain, to OLCC wholesalers and retailers.

I’m an ODA hemp handler. How do I get an OLCC hemp certificate?

You can’t right now. OLCC stopped accepting applications for the certificates back in April. Once the ODA proposed rule changes are final (hopefully very soon), OLCC should start issuing these applications once again. As to OLCC processors, those entities can still apply for hemp endorsements to add to their licenses.

Once I get an OLCC hemp certificate, how do those sales work?

You will have recordkeeping requirements for all hemp and related products transferred into the OLCC system. This means you will have to log information in the METRC Cannabis Tracking System, like OLCC licensees. Note that hemp products in METRC are not subject to tax, unless they are later mixed with marijuana. Note also that once you transfer hemp to an OLCC processor, it has to stay in the OLCC system. This means you cannot take it back and sell it outside of METRC.

Can I legally ship Oregon industrial hemp to other states?

Oregon does not restrict such sales, but the state does not create a safe harbor from federal law, either. In fact, the new rules will provide that no one participating in the Oregon hemp program is immune from federal law enforcement, even if they are not shipping hemp interstate. So what does federal law say about shipping industrial hemp and CBD interstate? It’s complicated.

Can I apply for an ODA permit on the same tax lot as my OLCC marijuana production? 

Yes, you can. But OLCC is going to require an approved “control plan” describing how the two production facilities will be separated, and ensuring that no industrial hemp winds up on the OLCC premises.

Can I get a bank account?

Yes. Maps Credit Union has announced it will begin servicing both plant-touching and ancillary hemp businesses on August 1. There may be other options in the pipeline as well.

Where can I find more information on all of this?

Aside from checking this blog, the best place to go are the relevant portions of the ODA and OLCC websites. Unlike OLCC, the ODA hasn’t done a great job of aggregating information in FAQ format or issuing bulletins, so you may have to actually read through the administrative rules (fun!), or call ODA itself with questions.

cbd marijuana hemp webinar
We can explain.

Cannabidiol (“CBD”) products are suddenly everywhere. But as much as opportunity and possibility have opened in the hemp-derived CBD industry, so too have legal pitfalls and snares that can confuse just about anyone breaking into this new market. When it comes to navigating the trails that are still being blazed, many are left wondering, “Is it legal or not?”

At a time when the popularity of CBD and hemp products meets legalization, the importance of this question cannot be overstated. Unfortunately, the answer is not an easy one. Individuals and companies alike are stepping forward with innovative ideas and using these products in health supplements, topical ointments, and even food and beverages. What they often find at all stages of production (manufacturing, distribution, and marketing), is that the law can be ambiguous and varied, especially when divided by state lines and the unavoidable intersections with federal law.

Our attorneys have been at the forefront of the struggle to effectively interpret and understand these challenging legal circumstances. On August 16th at 11 am PST, Harris Bricken attorneys Daniel Shortt and Alison Malsbury will present a webinar entitled “CBD Legal or Not: How State and Federal Laws Govern the Manufacture, Marketing & Distribution of CBD Products.”

Whether you are an individual or part of a company, working with U.S. or foreign grown products, an attorney or a government official, this webinar will equip you with the knowledge you need to successfully untangle the legal knots that may be preventing you or your clients from realizing the full potential of this industry. Our attorneys will discuss current state and federal laws, marketing do’s and don’ts, trademark protections, and FDA regulations. They will also address audience questions throughout the presentation.

To register, please go here. Move fast, as early bird pricing ends on August 3rd!

In the meantime, for more on CBD law, check out the following:

CBD lawyersLast week, the California Department of Public Health’s Food and Drug Branch (CDPH-FDB) issued a revised FAQ on cannabidiol (CBD) in food products that will likely block the sale of hemp-derived CBD products in California — which if you’ve been in the state lately, are pretty much already everywhere.

CDPH-FDB has determined that CBD sourced from industrial hemp cannot be added to food (including drinks) for either humans or pets:

[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.

California’s Health and Safety Code defines “food” as “a raw, cooked, or processed edible substance, ice, beverage, an ingredient used or intended for use or for sale in whole or in part for human consumption, and chewing gum.” Further, CDPH-FDB’s FAQ elaborates on what will not be allowed in food in California as follows:

  • Any CBD products derived from cannabis
  • Any CBD products, including CBD oil derived from industrial hemp
  • Hemp oil not derived from industrial hemp seeds
  • Industrial hemp seed oil enhanced with CBD or other cannabinoids

Seeds derived from industrial hemp and oil made from industrial hemp seeds are allowed in food if the distributor of those items makes no medical claims about the seeds and/or oil.

CDPH-FDB also made the following distinction between “hemp seed oil” and CBD oil:
Industrial hemp seed oil and hemp-derived CBD oil are two different products. Industrial hemp seed oil is derived from the seeds limited to types of the Cannabis sativa L. plant and may contain trace amounts of CBD (naturally occurring) and other cannabinoids. Food grade Industrial hemp seed oil is available from a variety of approved sources.

However, CBD or CBD oil derived from industrial hemp is NOT approved for human and animal consumption by the FDA as food and therefore cannot be used as a food ingredient, food additive, or dietary supplement.

CDPH-FDB confirmed in is FAQ that “there is no regulatory agency that provides oversight for the production of CBD oil from industrial hemp,” but CDPH does have authority over food and dietary use products generally and, therefore, food products containing CBD oil are within its authority to regulate. The FAQ also adds that “CBD is an unapproved food additive and NOT allowed for use in human and animal foods in California regardless of where the CBD products originate.” So, no out-of-state hemp-CBD loophole.

CDPH-FDB distinguished cannabis edibles sold under MAUCRSA and regulated by CDPH’s Manufactured Cannabis Safety Branch from non-cannabis food products sold outside of that regulatory framework. Yet in another blow to hemp-CBD, the Bureau of Cannabis Control will not allow MAUCRSA-licensed retailers to sell stand alone hemp-CBD products even though BCC rules explicitly allow for selling non-cannabis products at licensed retail storefronts.

The FAQ also addresses the Food and Drug Administration (FDA), which has a complicated relationship with CBD. The FDA states in its own THC/CBD FAQs that it is prohibited 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.” The FDA has also sent out cease and desist letters (see herehere, and here) to CBD producers and sellers across the country that were making medical claims about their CBD products in violation of the Federal Food, Drug & Cosmetic Act . The FDA takes the position that CBD is neither a conventional food nor a supplement exempt from drug testing. Recently though the FDA approved Epidiolex, the cannabis-based drug used to treat severe forms of epilepsy. This approval does not mean the FDA now allows for all CBD products or that it will now allow businesses to make medical claims about CBD for products that have not been approved as drugs under the Federal Food Drug & Cosmetic Act –in other words, anything containing CBD that is not Epidiolex.

Essentially, California is letting the FDA dictate what it will do with hemp CBD. Though many other states allow hemp CBD for human consumption pursuant to Federal Farm Bill programs, California is following nearly lock-step with big brother on this one. How exactly CDPH-FDB plans to enforce its FAQ is not clear given that hemp CBD products are already rampant in California.

Our CBD lawyers will continue monitoring this evolving situation as hemp CBD makers and sellers struggle to navigate and comply.