As the state of California has legalized cannabis for recreational use, many individuals have become increasingly interested in one of cannabis’ most well-known cannabinoids, cannabidiol (CBD). There has been much confusion over CBD’s legality in California, especially with respect to the interplay between federal, state and local regulations. The California Bureau of Cannabis Control regulates the cannabis industry, while the Federal Department of Food and Agriculture manages hemp cultivation, but there is currently no California state agency officially designated to regulate hemp-derived CBD products.
To add to the confusion, certain cities have allowed for the retail sale of CBD by non-cannabis licensed entities, while others continue to ban unlicensed CBD under their cannabis regulations. These blanket policies ignore critical factors – namely product sourcing and its connection to licensing, which is the crux of the legality discussion.
In September 2018 the State of California passed Senate Bill 1409 (SB 1409), which amends existing laws governing the cultivation of industrial hemp. Under previous law (effective through the end of 2018), industrial hemp that is grown must be grown by an approved hemp seed cultivar, which includes industrial hemp seed cultivars certified on or before January 1st, 2013, by specific organizations. Additionally, the law requires industrial hemp to be grown only as a densely planted fiber and/or oilseed crop.
Under SB 1409 “industrial hemp” will no longer be defined in the California Uniform Controlled Substances Act as a fiber or oilseed crop. Therefore, the bill deletes the requirement that industrial hemp be grown as a densely planted fiber or oilseed crop. The bill will also delete the requirement that industrial hemp seed cultivars be certified on or before January 1, 2013, in order to be included on the list of approved hemp seed cultivars. Further, the bill authorizes industrial hemp to be produced by clonal propagation of industrial hemp that is registered on the list of approved seed cultivars.
In addition to entities that are federally authorized to grow industrial hemp, SB 1409 will allow farmers to register to the California Department of Food and Agriculture’s registration pilot program and cultivate industrial hemp as well as produce hemp oil, fiber, seed, and extract. While the hemp oil produced is still not approved as a food, food ingredient, food additive, or dietary supplement, it is approved to be used in a number of products that are topically applied (via skin).
SB 1409 establishes a number of limitations on Industrial Hemp producers and among these are:
- Industrial Hemp must be grown on acreages not less than 1/10 an acre.
- Seed Breeders and other Hemp producers will be subject to laboratory testing of dried flower material.
- If a product contains more than 0.3% THC with continued testing, then it fails testing and is subject to destruction.
While the bill allows for the California Department of Food and Agriculture to establish an Industrial Hemp pilot program, which will allow farmers to produce industrial hemp, hemp oil, seed, fiber, and extract, it does not approve the use of Hemp derived products as a food, food ingredient, food additive or dietary supplement. With the recent election of a more hemp-friendly governor and possible changes to the new farm bill, California may finally see changes to the status of CBD at the retail level across the state in the upcoming year. SB 1409 goes into effect January 1, 2019, while Gavin Newsom assumes office on January 7, 2019.