California Hemp & CBD Attorney: Federal Update

From sunscreen to gummies, California CBD products are virtually everywhere in Los Angeles. But are CBD product sales legal in California? Ask a Los Angeles cannabis business attorney, and you’ll probably hear that classic lawyer-line: It depends.

Hemp, CBD and derivative products of both have existed in something of a legal gray area on the California cannabis market. Their availability in an array of forms has been noted to varying degrees across the state. This was true even when California only allowed medicinal cannabis production and sales, but it remains true even now that recreational sales are legal.

As a longtime Los Angeles cannabis business attorney, I’m closely familiar with the rapid legal changes in this dynamic industry. Sometimes, answers can change one day to the next. CBD (formally known as cannabidiol) is poised to become the next hottest cannabis commodity. It’s noted for its medicinal properties (particularly for joint pain, seizures, anxiety and insomnia) and low THC levels, meaning it doesn’t produce a high. It also blends well in almost everything – from cocktails to hand creams.

Federal Developments on Hemp and CBD Production and Sales

Congressional approval of the December 2018 Farm Bill helped strengthen the legal argument for California businesses selling CBD and hemp products. That measure removed CBD, industrial hemp and all derivatives of cannabis with less than 0.3 percent THC from the U.S. Controlled Substances Act. That opens the door to a myriad of possibilities for sales of legal CBD and hemp.

A few months prior to the Farm Bill, The U.S. Drug Enforcement Administration (DEA) removed CBD products with less than 0.01 percent THC from the Schedule I narcotic list (reserved for the most dangerous, addictive drugs), moving it instead to the lowest level Schedule V classification, reserved for drugs with low abuse potential and that contain limited narcotics. (To offer some perspective: That’s the same category with Robitussin AC). CBD products were finally legal for sale through a pharmacy with a prescription from a doctor, so long as the product prescribed has been approved by the FDA.

The 2018 Farm Bill just took it a bit farther by de-scheduling CBD altogether.

Even before passage of the 2018 Farm Bill or the DEA’s removal of industrial hemp and CBD from the Controlled Substances Act, the FDA approved an epilepsy drug called Epidolax, for which the active ingredient is CBD derived from cannabis sativa (as opposed to hemp). It’s used to treat rare forms of severe epilepsy.

Still, businesses eyeing the Southern California CBD market should discuss their plans with a Los Angeles CBD business attorney who can outline whatever concerns and contingencies persist. These include (but aren’t necessarily limited to) realities like:

  • CBD imports aren’t legal absent a permit.
  • The U.S. Food & Drug Administration (by way of its authority through the U.S. Food, Drug & Cosmetic Act) refuses to classify any food additive, ingredient, tincture, etc. with more than 0.03 percent THC as a food, while the health department in California allows higher THC-infused product manufacturing and sales, but considers anything below 0.03 percent to be governed by the aforementioned DCA.

Those in strict compliance with state medical marijuana laws are shielded from federal criminal prosecution under the Rohrabacher-Blumenauer Amendment (formerly known as the Rohrabacher-Farr Amendment). That measure blocks the U.S. Justice Department from spending any money to interfere with state-legal marijuana programs (at first it was only medical marijuana, but has since extended to recreational too).

One might presume on this basis Los Angeles businesses from restaurants to spas are free to pursue CBD sales, so long as the product was low THC. Not so fast… (And this is why it’s essential to talk to a qualified Los Angeles CBD sales attorney before launching your next product line or weekend special.)

CBD Restrictions Still Exist Under Federal Law

The primary ways in which the U.S. government is still heavy-handed on CBD regulation is with regard to food, beverages and non-approved drugs – particularly those with a higher THC content. The very same day the 2018 Farm Bill passed, the FDA issued a statement clarifying in no uncertain terms CBD was not to be used in food or unauthorized drug products.

CBD use for food – regardless of how much psychoactive THC it contains – is not allowed.

Southern California businesses with questions on CBD production and sale can direct them to our knowledgeable cannabis attorneys serving Los Angeles and Orange County.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.

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