On July 20, 2018, Hoban Law Group issued a letter to Dr. Karen Smith, Director of the California Department of Public Health Food and Drug Branch, concerning the recent FAQ – Industrial Hemp and Cannabidiol (CBD) in Food Products.
An excerpt of our letter is below. To read the full text, please follow this link.
Our firm represents numerous clients engaged in the cultivation, processing, manufacture, distribution, and use of products which contain derivatives of industrial hemp (the “Products”) across the United States. This letter is in response to a certain FAQ – Industrial Hemp and Cannabidiol (CBD) in Food Products (the “FAQ”) issued by the California Department of Public Health (“CDPH”) on July 6, 2018.
In short, the FAQ mischaracterizes relevant federal and state law and regulation and is fundamentally flawed for many reasons including, without limitation, the following:
1. The FAQ neither acknowledges or addresses all relevant provisions of California law, legislation which indicates the intent to provide for the Products;
2. The FAQ mischaracterizes the scope of Section 7606 of the Agricultural Act of 2014 (the “Farm Bill”) and corresponding legislation more narrowly than Congress intended;
3. CDPH mistakenly asserts “CBD derived from hemp . . . is a federally-regulated controlled substance” and gives inappropriate deference to the (erroneous) interpretations of law proffered by the Drug Enforcement Agency (“DEA”) and other agencies, in contradiction of guidance provided explicitly and directly by Congress; and
4. CDPH inappropriately mischaracterizes cannabidiol (“CBD”) as a prohibited food additive or dietary ingredient.
Correspondingly, we implore the CDPH to seriously reconsider the implementation of the FAQ and thereby rescind it. We request a meeting with CDPH at its earliest convenience to engage in further discussion with appropriate stakeholders to sensibly regulate the Products without implementing the FAQ. For years, California has been at or near the forefront of policy reform, having first enacted hemp legislation years ago. However, the FAQ stands to threaten an entire newly emerging industry, causing California to fall far behind the rest of the nation for years to come in its treatment and regulation of these Products. Simply put, the adverse impact of this FAQ would be devastating and irreparable.
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