In a blow to hemp-derived cannabidiol (CBD) product manufacturers who intend to use CBD as a food additive, the California Department of Public Health (CDPH), in conjunction with the California Food and Drug Branch (FDB), has released a clarification document titled: “FAQ – Industrial Hemp and Cannabidiol (CBD) in Food Products.” This FAQ concludes that “the use of industrial hemp as the source of CBD to be added to food products is prohibited,” citing current US Food and Drug Administration (FDA) stances on CBD and THC, as well as referencing the Controlled Substances Act of 1970 (CSA) scheduling of cannabis as a Schedule I drug, which makes it federally illegal to grow all forms of cannabis in the United States.

California does currently allow the manufacture and sale of cannabis products (including edibles) under regulation by the CDPH Manufactured Cannabis Safety Branch (MCSB), however, food products derived from industrial hemp are excluded from regulation by the CDPH MCSB. Instead, those food products are within the jurisdictional purview of the CDPH and the FDB.

California’s current definition of “food” is: (a) Any article used or intended for use in food, drink, confection, condiment, or chewing gum by man or other animal. (b) Any article used or intended for use as a component of any article designated in subdivision (a). That definition of “food” includes pet food, but excludes products containing cannabis, which are by definition cannabis edibles. The California Department of Food and Agriculture (CDFA) regulates meat, dairy, poultry or eggs.

The FAQ references the federal Agricultural Act of 2014 (the Farm Bill), and clarifies that the Farm Bill only provides for growing or cultivating industrial hemp by states departments of agriculture or institutions of higher education for purposes of research under a state pilot program or other agricultural or academic research. In California, the growing and cultivation of industrial hemp is regulated by the CDFA.

The FAQ concludes by saying that until the FDA changes their current stance to allow hemp-derived CBD oil and CBD products to be considered a food, or until the state of California determines that hemp-derived CBD is safe for human and animal consumption, CBD products are not approved to be food, food ingredients, food additives, or dietary supplements.

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