Bipartisan Bill to Legalize Marijuana Deliveries Filed in Washington State

Legislation that would legalize the delivery of marijuana to those 21 and older has been filed in Washington’s House of Representatives.

House Bill 1358 was filed by State Representative Steve Kirby (D) and is cosponsored by Representatives Brandon Vick (R) and Brian Blake (D). Filed today, the measure has been referred to the House Commerce and Gaming Committee.

Specifically, the measure would add a new section to chapter 69.50 of the RCW stating that “A marijuana delivery endorsement to a marijuana retailer license is established to permit a qualifying marijuana retailer to deliver marijuana for personal use to any individual twenty-one years of age or older.”

The Washington state liquor and cannabis board would be authorized to “establish the fee for the marijuana delivery endorsement””, and a marijuana retailer holding a delivery endorsement “may charge a fee to the customer for any delivery made
in accordance with this section.”

The full text of House Bill 1358 click here.

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A Shift in Nomenclature for Hemp-CBD Products

… FULL SPECTRUM HEMP?

In a recent post regarding the labeling requirements surrounding dietary supplements containing industrial hemp-derived CBD (“Hemp-CBD”), we alluded to a recent movement in the industry to rename Hemp-CBD products “full spectrum hemp.” We now take a closer look at the reasons behind this shift in nomenclature.

Part of the impetus behind this movement might be linked to a 2001 court decision pertaining to the status of lovastatin, a compound found in red yeast rice.

Although red yeast rice had been used for healing purposes for thousands of years, the isolated compound was approved by the FDA as a drug in the treatment of cholesterol. Despite the FDA approval, companies continued to sell and market lovastatin as a dietary supplement. One of these companies was Pharmanex. The FDA challenged the sale and marketing of Pharmanex’s product, Cholestin, and ultimately prevailed when Pharmanex challenged the FDA’s position in federal court.

The court held that the lovastatin found in Cholestin was not in its natural form (i.e., as naturally occurring in red yeast rice) because its manufacturer deliberately selected and used a method to produce specific levels of lovastatin that were greater than those naturally present in red yeast rice. In addition, the court determined that Cholestin was a drug because it was specifically marketed as the isolated lovastatin compound.

There may be some parallels between the case of red yeast rice and Hemp-CBD. Indeed, like red yeast rice, hemp and hemp extracts have been consumed for hundreds of years as food and for their medicinal value. Similar to red yeast rice, hemp contains hundreds of compounds, including CBD. And like lovastatin, CBD was recently approved by the FDA via a drug known as Epidiolex—although it is important to note that the CBD approved by the FDA as a drug is derived from the cannabis plant, not industrial hemp grown under an eligible state program, pursuant to the 2014 or 2018 Farm Bill.

Accordingly, if a Hemp-CBD product were to meet the standard laid forth by the court for red yeast rice (i.e., unadulterated full-spectrum hemp marketed as full spectrum hemp, not CBD), its manufacturer may be able to use the nomenclature “full spectrum hemp,” which might mitigate the risk of FDA enforcement action against Hemp-CBD products.

However, given the varieties of hemp strains, and the fact that each contain various levels of naturally occurring compounds, it might be challenging to specifically assess what constitutes “naturally occurring” levels of CBD. Nonetheless, “full spectrum” is generally understood to mean that all the natural constituents of the hemp plant are in product at the same percentages as they would be found in nature. Because advertising cannot be false or misleading, the nature of each product would be dispositive—i.e., whether or not the natural constituents are there in natural percentages—in determining whether those products might fall outside the scope of FDA scrutiny.

Accordingly, before manufacturers of Hemp-CBD products consider renaming their product “full spectrum hemp” they should consult with experienced attorneys to review their manufacturing process and determine whether switching from “CBD” to “full spectrum hemp” in labeling and marketing would be allowed and beneficial.

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Wisconsin Governor Announces Support for Legalizing Marijuana

Wisconsin Governor Tony Evers has announced that he now supports legalizing marijuana for recreational purposes.

Wisconsin Governor Tony Evers (photo: Steve Appsa/Wisconsin State Journal/Associated Press).

Attorney General Josh Kaul also said on Wednesday that he would make the case across Wisconsin for legalizing medical marijuana as an alternative to prescribing more opioids to combat pain, reports the Associated Press.

“At the end of the day do I favor legalization? Yes,” Evers said at a meeting of the Wisconsin Technology Council on Tuesday. “I want it to be done correctly so we will likely have in our budget a first step around medical marijuana.”

WisPolitics.com was the first to report on his comments.

Evers’ spokeswoman Melissa Baldauff did not immediately return a message Wednesday seeking more details.

Evers said he may call for a statewide referendum on legalization. Such referendums are advisory only in Wisconsin, but could increase pressure on reticent Republicans.

Republican Assembly Speaker Robin Vos has said he’s open to legalizing medical marijuana, but Republican Senate Majority Leader Scott Fitzgerald has said he doesn’t support it.

“I still don’t believe the support’s there within the Senate caucus to move in that direction, but I know the debate is going on nationwide,” Fitzgerald said on Tuesday when asked about the issue.

Kaul, in an interview with WTMJ-TV, cast the issue as a way to combat opioid abuse.

“We are in the midst of an opioid epidemic and when people are facing pain issues — I would much rather have a doctor prescribing medical marijuana than an opioid,” Kaul told the television station.

Democratic state Rep. Melissa Sargent, who has introduced bills to full legalize marijuana, said she believed public support will put pressure on Republicans to come around.

“For too long we’ve had people at the top of the food chain who suffer from reefer madness,” Sargent said. “Frankly, it’s time for them to swallow their pride and hear the people of our state and move forward.”

There appears to be strong support among voters in Wisconsin for legalization. In the November election, voters in 16 counties supported non-binding referendums calling for legalization of medical marijuana. A Marquette University Law School poll in August found 61 percent support for full legalization, with 36 percent opposed.

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Medical Marijuana Bill Signed Into Law by U.S. Virgin Islands Governor

U.S. Virgin Islands Governor Albert Bryan Jr. signed the Medical Cannabis Patient Care Act into law Tuesday.

The bill, sponsored by Senator Positive T.A. Nelson, received final approval from the Legislature on December 28. The measure legalizes medical marijuana for those who receive a recommendation from a physician.

Comprehensive medical marijuana laws have been adopted in 32 states, the District of Columbia, and the U.S. territories of Guam, Puerto Rico, and the Northern Mariana Islands. Seventeen other states have adopted medical marijuana laws that are ineffective because they are either unworkable or exceptionally restrictive. Idaho is the only state and American Samoa is the only U.S. territory without any form of medical marijuana law.

“We applaud Gov. Bryan and the Virgin Islands Legislature for enacting this sensible and compassionate legislation”, says Karen O’Keefe, director of state policies for the Marijuana Policy Project. “Medical marijuana is widely recognized as an effective treatment for a variety of debilitating conditions and symptoms. This new law offers the prospect of relief for countless patients, and it will do so for generations to come.”

O’Keefe continies; “Most U.S. states and territories have enacted effective medical cannabis laws, and those that have not are giving them increasingly stronger consideration. There is no reason why patients in 18 states and American Samoa should continue to be deprived of this medical treatment option that is now accessible to so many of their fellow Americans.”

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The Top 10 Most Popular Marijuana Strains to Start 2019

As we march into 2019, here’s a look at the most popular marijuana strains on the market.

Blue Dream.

Using data collected by Leafly, below is a list of the top 10 most popular marijuana strains for the start of 2018.

Anyone who has consumed cannabis for any amount of time will likely find Blue Dream’s placement on this list unsurprising (especially those in states with legal marijuana stores). This sativa-dominant strain has remained one of the most popular for years, and is a mainstay in almost all marijuana stores and dispensaries. The popularity of this strain – a cross between the indica-dominant Blueberry strain and the sativa-dominant Haze strain – is well earned, with it’s smooth, uplifting high, and it’s delicious blueberry-tinged taste and smell.

Sour Diesel is another long-term mainstay of the cannabis world. With Super Skunk and Chemdawg lineage, this strain is best known for its strong diesel-like smell, and potent, energetic high.

This hybrid – a cross between OG Kush and Durban Poison – has bursted onto the scene in recent years. With it’s excellent taste and smell, and its powerful high, this relative newcomer has quickly become more popular than legendary strains like OG Kush and White Widow.

Despite an unfortunate name Green Crack is a growingly popular and respected strain. It has an extremely energetic high and powerful body buzz, and its sweet, ofttimes citrusy flavor and smell make it stand out from the crowd.

OG Kush is known the world around. The classic combo of Hindu Kush and Chemdawg has an earthy and piney flavor, and has one of the most sought after marijuana strains for years.

As far as indica-dominant strains go, Granddaddy Purple is one of the most vaunted. An excellent mix of Big Bud and Purple Urkle, this strain has a sweet, often berry-like flavor. Most people know this strain for its dense, kiefy nuggets.

The newest addition to this list, Original Glue is “a potent hybrid strain that delivers heavy-handed euphoria and relaxation, leaving you feeling “glued” to the couch. Its chunky, resin-covered buds fill the room with pungent earthy and sour aromas inherited from its parent strains, Chem’s Sister, Sour Dubb, and Chocolate Diesel.”

White Widow’s popularity is due to its energetic, uplifting and powerful high; its uniquely earthy flavor and smell also help it stand out. This strain is a mix between South American Sativa and South Indian Indica.

Jack Herer – named after the legendary activist and author – is a sativa-dominant cross between Northern Lights and Shiva Skunk. It has a piney smell and flavor with a backdrop of citrus, and a smooth, even high.

Bubba Kush is a powerful indica-dominant strain that has remained popular for years, and doesn’t seem to be going away anytime soon.

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Industrial Hemp and the Banks: Slow Going

We have spilled a lot of ink on this blog related to the 2018 Farm Bill, which legalized hemp at the federal level. It’s huge news. And there are so many ramifications, from food law to trademarks to the environment for financial services. This blog post is going to cover financial institutions and hemp at about 10,000 feet. Since late December, we’ve had many clients come to us with frustrations about the ongoing lack of access post-Farm Bill, and questions about how things will play out in 2019.

To frame this issue, it’s important to summarize what the Farm Bill actually is and does. In a recent post, we explained that “the 2018 Farm Bill modified the Controlled Substances Act (the ‘CSA’) to exempt hemp from the definition of marijuana. Not only is hemp now clearly excluded from this definition and thus not a scheduled drug, but states and tribes also cannot prohibit the distribution of hemp.” Seems easy, right?

If only. Going forward, hemp will be subject to stiff regulation at the state and federal levels. For example, although hemp is no longer a controlled substance under the CSA, the Farm Bill reserves certification rights to the Department of Agriculture over state and tribal industrial hemp production “plans.” Those plans will be nuanced, and what any given state’s plan will look like next year is unknown. That fact alone may be the biggest reason that most financial institutions are still on the sidelines.

Financial institutions are also conservative by nature. We represent a handful of banks (and a larger handful of credit unions), and we give those outfits advice on banking hemp and marijuana. A few of these clients are relatively nimble and bold, but at the end of the day they are still banks. They have directors who worry about individual liability, lawyers and officers who worry about byzantine state and federal laws and policy, and shareholders and members who may see outsized risk and steep learning curves. When banks move into these areas, they tend to offer limited services, which are seldom more than basic merchant accounts.

Financial institutions also understand that when a new piece of federal regulation is enacted, it takes some time for rules to be written in support of the new law (both federally and by states), for programs to be staffed and built, for guidance to issue, etc. Finally, there is often a wave or two of litigation to interpret the administrative environment. All of that happens over the course of years and not months, and all of that will happen with hemp and the Farm Bill. Like the rest of us, financial institutions cannot see around corners and will be watching closely.

So what does all of this mean? Ultimately there will be banking, but banks and credit unions will not come in all at once. When they do come in, the early actors will probably provide services for hemp clients that looks similar to what is out there today in states like Washington and Oregon for hemp and marijuana businesses. This means limited access to institutional lending, ongoing compliance reporting and audits, and short leashes overall. Everything that happens will be fluid and consistent with best practices for high-risk industries.

Ending prohibition is a lot of fun, but then you get to wake up and go to work. We are optimistic that the hemp industry will have ample banking options. It will take some time, though. In the meantime, we will continue to monitor this issue and other hemp-related matters closely. Stay tuned.

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Legislation Filed in Virginia to Legalize Marijuana

A legislative proposal that would legalize marijuana for those 21 and older, while decriminalizing it for those under 21, has been filed in Virginia’s House of Representatives.

was filed by Delegate Steve Heretick (D) along with four cosponsors. The measure would remove all criminal penalties for the personal possession of marijuana for those 21 and older, while legalizing marijuana retail outlets. These outlets would be taxed at 9.7% in addition to the state’s current sales tax. Around 2/3rds of the tax revenue would go to the general fund, with the remainder going to public education.

According to the bill’s official summary, it “also decriminalizes marijuana possession for persons under 21 years of age and provides a civil penalty of no more than $50 for a first violation, $100 for a second violation, and $250 for a third or subsequent violation.”

A separate but similar legalization measure, House Bill 2373, was also filed recently in the Virginia House of Representatives. Both House Bill 2373 and House Bill 2371 have been assigned to the Committee for Courts of Justice Subcommittee #1.

For the full text of House Bill 2371, click here – for House Bill 2373, click here.

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U.S. Attorney General Nominee Says He Would Respect State Marijuana Laws

U.S. attorney general nominee William Barr said during a Senate confirmation hearing Tuesday that he would not target marijuana businesses that are operating in compliance with state laws that allow them, whether for medical or recreational purposes.

William Barr.

If confirmed, Barr said his “approach to this would be not to upset settled expectations and the reliant interests that have arisen as a result of the Cole memorandum.” He later added that he “is not going to go after companies that have relied on the Cole memorandum.”

The Cole memorandum was issued in 2013 by then-Deputy Attorney General James M. Cole and provided marijuana enforcement guidance to U.S. attorneys. It stated that the Justice Department would not enforce federal marijuana prohibition laws in states that have legalized marijuana for adult or medical use as long as certain federal priorities are addressed, such as preventing interstate trafficking and sales to minors.

Barr also expressed frustration with the conflict between state and federal marijuana laws, calling the current situation “untenable.”

“We are pleased to hear Mr. Barr intends to respect state marijuana laws if he is confirmed as our next attorney general”, says Steve Hawkins, executive director of the Marijuana Policy Project. “His reference to the Cole memo suggests that he will maintain the policy of non-interference that has existed since August 2013. This is not only a sensible decision, but is one supported by a vast majority of Americans.”

Hawkins continues; “We are also sympathetic to Mr. Barr’s call for a more consistent federal approach, provided it is one that respects the will of the people. To that end, it is time for Congress to pass a law that either removes marijuana from the federal Controlled Substances Act or formally exempts state-legal cannabis activity from its provisions.”

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Federal Legislation Introduced To Protect State-Level Marijuana Legalization Laws

Representative Lou Correa (D-CA) has introduced House Resolution 493: The Sensible Enforcement Of Cannabis Act, which would codify the protections that were outlined in the now-rescinded Cole Memo.

As reported by NORML, The Sensible Enforcement Of Cannabis Act essentially would give peace of mind to lawmakers, regulators, 149,000+ workers, and the millions of patients and consumers who are dependent on the normalization of lawful marijuana markets. The most essential component in creating a stable business environment to meet consumer demand is certainty, and that is what states and businesses would have with Congressman Correa’s legislation to protect state-lawful programs from potential rouge US Attorneys under a Department of Justice likely to be led by known drug warrior William Barr.

To date, these statewide regulatory programs are operating largely as voters and politicians intended. The enactment of these policies have not negatively impacted workplace safety, crime rates, traffic safety, or youth use patterns. They have stimulated economic development and created hundreds of millions of dollars in new tax revenue.

Tax revenues from states like Colorado, Oregon, and Washington now exceed initial projections. Further, numerous studies have identified an association between cannabis access and lower rates of opioid use, abuse, hospitalizations, and mortality.

It is critical that federal officials protect our progress. Send a message in support of HR 493 now!

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FDA Enforcement Against Hemp-CBD Products Has Begun

Not OK per FDA.

On January 3rd, according to the owner of a smoke shop in Yuma, Arizona, officials from the Food and Drug Administration (FDA) seized a variety of CBD products from the store’s shelves. The officials took fewer than fifty items and told the owner to anticipate follow-up paperwork within seven to ten business days.

According to the owner’s account, FDA officials had stopped by the shop a few days earlier and asked what products were edible and intended for humans. When those officials returned, they informed the owner that CBD cannot be sold for human consumption.

This squares with what we have written about extensively, and also with what FDA Commissioner Scott Gotlieb has stated:

[I]t’s unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements. Under the FD&C Act, it’s illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements. This is a requirement that we apply across the board to food products that contain substances that are active ingredients in any drug.”

Gottlieb also made clear that things like claiming CBD or cannabis products cure diseases prior to undergoing FDA approval are not lawful, and that the FDA will not hesitate to warn consumers and initiate enforcement actions against CBD companies. The enforcement against the Yuma store seems to indicate that those enforcement actions have begun in earnest.

There seems to be a good amount of misunderstanding about how the passage of the Agriculture Improvement Act of 2018 (or the “2018 Farm Bill”) affects the legality of selling industrial hemp-derived CBD products. But to reiterate, nothing in the 2018 Farm Bill alters the FDA’s position on CBD pursuant to the Federal Food, Drug, and Cosmetic Act (FDCA). Here are some additional highlights from that statement:

  • The FDA will continue to enforce the law, including the FDCA, in an effort to protect patients, the public, and to promote the agency’s goals of promoting public health;
  • Products containing cannabis or cannabis-derived compounds, including CBD, will be subject to the same regulations and requirements as other non-cannabis FDA-regulated products;
  • Hemp or hemp-derived CBD products that are “marketed with a claim of therapeutic benefit, or with any other disease claim” must be approved by the FDA before being introduced into interstate commerce;
  • Hemp or hemp-derived CBD products marketed “for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases” are considered drugs and must be approved by the FDA before they are marketed for sale in the United States; and
  • It is “unlawful under the FDCA to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.”

It remains to be seen whether the FDA will introduce new regulations pertaining to the sale of hemp-derived CBD products intended for human consumption. For now, the agency has indicated that its position on CBD products is clear. We’ll be watching closely to see if this enforcement action constitutes a ramp-up of enforcement against CBD companies nationwide.

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The Even More Perplexing State of Hemp CBD in California

We’ve got you covered on California, hemp, FDA and CBD.

A few months ago, I wrote a blog post about the precarious state of industrial-hemp derived CBD in California. Since then, as everyone knows, President Trump signed the Agricultural Improvement Act of 2018 (or “Farm Bill”). A lot of people think that in the wake of the Farm Bill, hemp-derived CBD (“Hemp CBD”) is now completely legal. This is in many cases a wildly inaccurate misconception—especially in California. Now, the legal status of Hemp CBD is arguably even more confounding than it was then. And it was pretty bad.

What did the 2018 Farm Bill Actually Do?

Before getting into California Hemp CBD laws, it’s important to discuss what the new Farm Bill even changes. If you follow us here at the Canna Law Blog, you know we’ve written pretty comprehensively on this topic. For a brief overview, the 2018 Farm Bill modified the Controlled Substances Act (the “CSA”) to exempt hemp from the definition of marijuana. Not only is hemp now clearly excluded from this definition and thus not a scheduled drug, but states and tribes also cannot prohibit the distribution of hemp. However, as I explain below, that doesn’t necessarily mean hemp or Hemp CBD can be sold without state restrictions.

The current Farm Bill also gives the U.S. Department of Food and Agriculture (the “USDA”) authority to oversee state hemp regulatory programs. For example, states and tribes must submit plans to the USDA for implementing regulatory schemes, and these plans must be approved by the USDA. In the event that they aren’t, the USDA can implement its own plan.

One other interesting component of the Farm Bill is that crop insurance coverage could be extended to hemp, meaning hemp crops could actually gain federal insurance. In a state like California that is prone to natural disasters, this is critical.

These aren’t all the changes that the new Farm Bill brought along, but they are some of the key ones. Now, on to California.

Hemp CBD in Food/Beverages in California

Over the summer, the California Department of Public Health (“CDPH”) issued its now infamous FAQs (the text is here), which took the position that:

[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.”

Under California law, “food” is defined as “[a]ny article used or intended for use for food, drink, confection, condiment, or chewing gum by man or other animal” and “[a]ny article used or intended for use as a component of any article designated” in the foregoing definition. What this means is that the CDPH views anything that counts as food or drink that’s intended for human or animal consumption as unlawful.

On an important side note, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (or “MAUCRSA”) defines “cannabis” to exclude industrial hemp (and therefore doesn’t regulate industrial hemp), and instead incorporates provisions of the California Health and Safety Code which leave the regulation of hemp cultivation to the California Department of Food and Agriculture (“CDFA”). The CDPH expressly cited this issue in MAUCRSA back in response to the 45-day comment period for its proposed regulations to note that the CDPH doesn’t have jurisdiction over regulating industrial hemp. This doesn’t mean that the CDPH can ban hemp in other things (like manufactured cannabis, see below), but it just means that under MAUCRSA, the CDPH can’t start issuing hemp regulations.

Back to the main story, it was pretty clear after the FAQs were issued that the CDPH wouldn’t continue to tolerate sales of foods or beverages with Hemp CBD for long. But we weren’t aware of any sort of enforcement efforts or actual regulations by the CDPH regarding Hemp CBD in foods or beverages. However, after the Farm Bill wound its way through Congress but before Trump signed it, there was some question on whether the Farm Bill would negate the CDPH FAQs.

A few days before the Farm Bill was signed, I wrote a post predicting that the 2018 Farm Bill would not do away with the FAQs. This was because the FAQs are based on the CSA’s prohibitions on hemp as well as the federal Food and Drug Administration’s (“FDA”) stance that Hemp CBD foods are not permissible. The Farm Bill changed the CSA, but not the position of the FDA.

In fact, while the ink from Trump’s signature on the Farm Bill was still drying, the FDA issued a statement (see here) telling companies to pump the brakes and that it still regulates hemp and CBD in at least medicines and foods. In an accompanying Q&A document, the FDA takes the fairly unequivocal position (see response to Q.13) that it is illegal to introduce into interstate commerce food that has CBD in it.

So what is going to happen now? As noted above, we aren’t yet aware of any enforcement actions in California. We’re also unlikely to see any sort of new guidance from the feds during the shutdown or in the immediate future thereafter. But localities may be taking a very different approach.

For example, the L.A. County Department of Public Health’s Environmental Health Division (“LADPH”) published an undated PDF concerning industrial hemp in food and saying that the LADPH will begin actually enforcing them: “Effective July 1, 2019, prohibited use of industrial hemp derived products in food will be considered adulterated and cited by [LADPH] as a violation resulting in a deduction of two (2) points on the official inspection report.”

This is one of the first instances we’ve seen of a county taking an official enforcement position on CBD food products, and interestingly comes on the heels of the L.A. Department of Cannabis Regulation (“DCR”) creating an attestation (which I wrote about here) for businesses who sell hemp products to advise that those products don’t fit within the legal definition of cannabis.

Now it seems like we have our first glimpse of what is going to happen when companies sell CBD foods or beverages. While this is only in L.A., we can assume that other counties will follow suit and may be even more aggressive in their pursuit of these hemp CBD food companies.

What is much less clear though is what this means for simply manufacturing or distributing food products that contain hemp CBD. The CDFA’s website Q&As still say that “California law does not currently provide any requirements for the manufacturing, processing, or selling of non-food industrial hemp or hemp products.” It seems like we will need to wait and see what the final answer is.

Licensed Cannabis Products

Cannabis products will generally contain at least some level of CBD naturally. But what about adding CBD from an industrial hemp source to a manufactured product under the Medicinal and Adult-Use Cannabis Regulation and Safety Act? Well, the CDPH (which governs the manufacture of all cannabis products in California) says no. In the proposed final regulations (no. 40175(c)), the CDPH states pretty clearly that, “A manufacturer licensee shall only use cannabinoid concentrates and extracts that are manufactured or processed from cannabis obtained from a licensed cannabis cultivator.” With this regulation, the CDPH has effectively cut Hemp CBD out of the manufacturing process altogether.

Alcohol Products

In 2018, the California legislature passed a piece of legislation that prohibits cannabis or alcohol licensees from introducing Hemp CBD (or THC) to alcoholic beverages. You can read more about that here.

Dietary Supplements and Medicinal Products

The FDA’s statement makes clear that it will retain jurisdiction over CBD products making medicinal claims, and the accompanying Q&A (see response to Q.12) says that the FDA views dietary supplements containing CBD as unlawful. That said, the FDA notes that there is at least a path towards FDA approval. For what it’s worth, the FDA’s not all talk—see the case of Epidiolex (and see subsequent statement by California’s Attorney General, Xavier Becerra, on Epidiolex). Also, the same day that it issued the statement discussed above, the FDA issued a companion statement listing as generally recognized as safe (“GRAS”) hulled hemp seed, hemp seed protein powder, and hemp seed oil. The FDA is making clear that it’s willing to work with the CBD industry, but it will probably not be cheap.

Vaporizers and Other Products

We recently wrote a comprehensive post about Hemp CBD in vape cartridges. What we said then still holds—it’s a grey and undefined area. This is probably another area that the FDA may eventually regulate given its similar work with nicotine-based vape products. But given the shutdown and just the general speed of regulators, we’re unlikely to know anytime soon.

For what it’s worth, the FAQs are only tailored to food, but it’s possible that regulators could view all products containing Hemp CBD intended for human consumption as unlawful. This seems a bit less likely to happen right away because the CDPH and other agencies have had ample chance to do this but haven’t. But it’s certainly possible, and we’ll make sure to keep you informed of any developments.

Cultivation

We know that at least for cultivation, California’s recent bill SB-1409 (which we’ve written about here and here) was intended to create an application and registration scheme for cultivators. Now that the Farm Bill will require states to submit plans to the USDA for hemp production, it’ll be interesting to see what happens with SB-1409.

Packaging and Labeling

Anyone in the California cannabis game knows that the packaging and labeling regulations are tough, ever-changing, and hard to comply with. The point of these laws seems straightforward—regulators want people to know what they are consuming, and to ensure that cannabis products are properly labeled so that people don’t unwittingly ingest cannabis. They also want to avoid false and misleading claims in labeling.

Because CBD products in California are either in grey or quasi-illegal areas, things aren’t so clear. There aren’t specific packaging and labeling laws for it here, so people who still are selling these products are operating in a labeling wild west. This is different from states like Oregon or Indiana, which have actually begun to figure out how some CBD products should be labeled. We published a post recently on the complexities of and in many cases lack of instruction for hemp labeling laws at the FDA level—and the fact that there may not be guidance for another year or two.

The FDA’s Q&As (see response to Q.15) note that in deciding whether to institute enforcement actions, the FDA will now consider factors, such as “agency resources and the threat to public health.” This may be the FDA’s way of saying that in light of its limited resources, it’s going to spend its enforcement power on those companies selling dangerous products or making false or misleading health claims. One thing we do already know is that the FDA has already sent warning letters to companies that have marketed CBD as new drugs, in the FDA’s view. So in post-shutdown mode, we may see the FDA step in more aggressively on enforcement, especially for products and claims that it views as unlawful.

With the passage of the Farm Bill comes the possibility of a completely new playing field for industrial hemp producers. It appears that the question of whether IRS Code 280E (which prohibits deductions for any amount paid or incurred in carrying on any trade or business that consists of trafficking in a Schedule I or II controlled substance under the CSA) will apply to hemp producers is now settled.

But what about issues like banking or federal intellectual property protections? While it seems like these may be a reality soon, the answer is not as clear cut. If the FDA starts using its enforcement powers against companies that make Hemp CBD foods, for example, it’s certainly possible that banks will still stay away from those companies or that the USPTO won’t register their trademarks. It’s all too soon to say how this will play out, so stay tuned to the Canna Law Blog.

It may seem difficult to understand why cannabis, which is still prohibited federally, is at the state level treated more liberally than Hemp CBD. But the reason is clear—there are strict regulatory testing and quality assurance requirements for cannabis, there will be a track-and-trace system in place to ensure that only white market sources are used, and there are tight packaging and labeling rules that create uniformity in how cannabis products are identified to consumers.

That level of regulatory security doesn’t really exist yet for Hemp CBD and so regulators and lawmakers are naturally more concerned about products that they cannot trace, that may not be labeled at all, and that have undergone zero testing. When Hemp CBD is regulated more like cannabis, regulators may very well relax some of their positions.

Stay tuned to the Canna Law Blog as we will be sure to follow and interpret each and every development in this complex and fast moving space.

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Legislation to Legalize Personal Marijuana Cultivation Filed in Washington’s House and Senate

Companion bills that would legalize the personal cultivation of marijuana for those 21 and older has been filed in Washington State’s House of Representatives and Senate.

The legislation, which has bipartisan support in both chambers of the legislature, would allow anyone 21 and older to grow up to six marijuana plants at a private residence, for personal use. If three or more individuals 21+ are living in the same residence they could grow up to, but not more than (regardless of the number of residents), fifteen plants.

Despite the current marijuana possession limit in the state being one ounce, the bills would allow those growing marijuana to possess over this amount if their harvest is larger.

Currently there are 10 states in the U.S. where marijuana has been legalized. However, Washington is the only one of these states where marijuana can’t be grown for personal use.

For the full text of Senate Bill 5155 and House Bill 1131, click here.

The post Legislation to Legalize Personal Marijuana Cultivation Filed in Washington’s House and Senate appeared first on TheJointBlog.

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