Emergency Regulations Approved Which Ban Hemp Products With Any Detectable Amount of THC

by Omar Figueroa and Lauren Mendelsohn

September 23, 2024

We previously wrote on September 6 that the California Department of Public Health (CDPH) announced emergency regulations which would, among other things, prohibit manufactured hemp products from containing any detectable amount of total THC  (which per the regulations includes not only delta-9-THC but also delta-8-THC, delta-10-THC, THCa, and other compounds), restrict sales to adults ages 21 and older, and would impose a 5-serving-per-package limit on such products.

These emergency regulations were approved by the Office of Administrative Law on Monday, September 23, 2024.

The approved emergency regulations are below and can also be accessed here.

The new regulations require that industrial hemp food, beverage, and dietary products intended for human consumption have no detectable THC or other intoxicating cannabinoids per serving, create a minimum age to purchase hemp products to 21, and limit the number of servings of hemp products to five per package.

The Press Release promised stringent enforcement once the emergency regulations took effect, which would be immediately upon approval by the Office of Administrative Law. The Office of Administrative Law approved the proposed emergency regulations on September 23, 2024.  More information about the emergency rulemaking process can be found here.

Now that the regulations have taken effect, it would be prudent to recall that state regulators and state and local law enforcement officials previously signaled their intent to begin enforcement action immediately:

These regulations will take effect immediately upon approval by the Office of Administrative Law. Sellers must begin to implement purchase restrictions and remove consumable hemp products containing any levels of detectable THC from shelves. State regulators, including the Department of Public Health, the Department of Cannabis Control, the California Department of Alcoholic Beverage Control (ABC), the California Department of Tax and Fee Administration (CDTFA), and state and local law enforcement officials, will begin immediate enforcement action.

“The Department of Alcoholic Beverage Control will enforce all California laws and regulations impacting ABC licensed locations,” said Joseph McCullough, Director of ABC. “ABC will be contacting licensees and stakeholder groups to make them aware of the new regulations so they can ensure they are in compliance once the regulations go into effect.”

“Our cannabis and tobacco inspectors are out in the field every day so that consumers can know that the items on store shelves are legal in California, properly tested, labeled, and taxed,” said Nick Maduros, Director of CDTFA. “We will continue working with our colleagues at the state and local levels to educate retailers and enforce California law.”

When the proposed emergency regulations were announced, Governor Newsom participated in a video Press Conference where he blamed the hemp industry’s failure to self-regulate for the emergency regulations.  He also stated that until a legislative solution can be achieved (working with Assemblymember Cecilia Aguiar-Curry) which integrates intoxicating hemp products into the regulated cannabis supply chain, the emergency ban on hemp products would remain in place.

Assemblymember Aguiar-Curry, author of Assembly Bill 45 which gave rise to California’s current manufactured hemp marketplace, issued a Press Release lauding Governor Newsom’s emergency regulations:

Assembly Majority Leader Cecilia Aguiar-Curry (D- Winters) and key stakeholders, including the California Cannabis Industry Association and United Food and Commercial Workers, applaud the Governor’s proposed emergency regulations to protect the public from intoxicating hemp. The emergency regulations issued on September 6, 2024, by the California Department of Public Health (CDPH) will explicitly ban synthetic tetrahydrocannabinol (THC) in hemp products, limit serving sizes, and implement other restrictions on hemp products.

“I want to thank Governor Newsom for moving aggressively to keep these intoxicating products out of the hands of California’s kids.  We have worked together since the 2018 Farm Bill legalized industrial hemp nationwide. We collaborated on my Assembly Bill 45 in 2021, which created the strongest legal structure in the nation for regulating these products, registering companies to fund enforcement against illegal products, and implementing needed guardrails,” said Majority Leader Cecilia Aguiar-Curry (D-Winters).

“The Governor and our coalition have consistently made it clear that our efforts were meant only to legalize non-intoxicating hemp products, that synthetic intoxicants are illegal, and that the only place to get intoxicating cannabinoids would be in dispensaries,” added the Majority Leader. ”I am thrilled to see the Administration using emergency regulatory authority, including the authority granted in AB 45, to crack down on intoxicating products. The bottom line is that products that can get you high should not be available to youth and should not be sold outside a dispensary. Period.”

“UFCW has always led the nation in promoting and legitimizing the cannabis industry and it’s high time our state curbs intoxicating hemp, an unfettered and dangerous sector of the industry,” said Mark Ramos, President of the UFCW Western States Council and UFCW Local 1428. “It’s UFCW members who see how without proper age verification and testing for dangerous substances such as fungus or pesticides – and being sold without serving size and per package caps – the hemp-sourced THC products being sold in gas stations, convenience stores and wine shops are a direct threat to confused consumers and children.

“The Governor’s regulations will further protect the legal, licensed and unionized cannabis industry that has invested time and money into building and maintaining a legal cannabis commerce framework and UFCW members applaud his actions today,” continued Ramos. “Governor Newsom is on the right side of this fight by demanding that something be done to protect public health and we’re pleased to stand in partnership with him to ensure profit is no longer put over our kids’ or public safety.”

“We commend Governor Newsom’s decisive action to address intoxicating hemp products in California, protecting public health and ensuring that harmful, unregulated products no longer undermine our state’s rigorous cannabis laws,” said Amy Jenkins, Legislative Advocate for the California Cannabis Industry Association. “These emergency regulations will create a safer, more transparent marketplace while safeguarding our youth and preserving the integrity of — and critical tax revenues from — California’s cannabis legalization framework. To be clear, we believe there is a place for hemp-derived products in the cannabis ecosystem, once we establish parity and regulate cannabinoids based on intoxication, regardless of their source. We look forward to working with Majority Leader Aguiar-Curry to advance meaningful reforms next year.”

The emergency regulations were issued weeks after AB 2223 (Aguiar-Curry, 2024) was held on suspense in the Senate Appropriations Committee. AB 2223 would have protected public health by eliminating access to intoxicating hemp products while providing a pathway for well-regulated hemp and cannabis industries to participate in the federal and state legal hemp marketplace. The Majority Leader intends to continue her work on this issue by introducing new legislation in the next legislative session.

This drastic policy change is controversial and hemp advocates threatened litigation if the emergency regulations took effect.  See, Hemp advocates may sue Newsom over proposed emergency industry regulations, CBS News Sacramento, September 17, 2024.

Reportedly, on Tuesday, September 24, 2024, the U.S. Hemp Roundtable filed a lawsuit against the CDPH in the Los Angeles County Superior Court.

The petition and complaint can be read below and downloaded here.

This is a developing story; stay tuned for updates.