Hemp-Derived THC Products Now Illegal in California After OAL Approval

Products containing hemp-derived intoxicating cannabinoids are now illegal in California after the Office of Administrative Law (OAL) approved Gov. Gavin Newsom’s emergency regulations on Sept. 23.

The regulations require that industrial hemp food, beverages and dietary supplements intended for human consumption have no detectable THC or any “comparable cannabinoid” per serving, have a minimum purchase age of 21 and have no more than five servings per package, according to the California Department of Public Health (CDPH).

Intoxicating cannabis products may still be purchased by those 21 years and older at a California Department of Cannabis Control (DCC)-licensed dispensary. While products containing CBD are still allowed outside the licensed cannabis market, nonintoxicating CBD products with any traceable amount of THC are prohibited.

The CDPH proposed the regulations, which Newsom issued emergency rules for on Sept. 6, to “stop the peddling of intoxicating hemp products to California’s children,” according to a press release from the governor.

“We will not sit on our hands as drug peddlers target our children with dangerous and unregulated hemp products containing THC at our retail stores,” Newsom said in the release. “We’re taking action to close loopholes and increase enforcement to prevent children from accessing these dangerous hemp and cannabis products.”

The effective date of the emergency regulations is Sept. 23, following the OAL’s approval. The ban on products containing intoxicating hemp-derived cannabinoids will remain in effect until March 25, 2025, SFGATE reported.

The emergency regulations are in response to public health concerns about the increase in incidents related to these products, including complaints of injury and illness, according to the CDPH.

Retailers—including vape shops, liquor stores, gas stations and convenience stores—must immediately remove intoxicating cannabinoid products from their shelves and begin implementing the purchase restrictions for other hemp-related products.

State regulators, including the Department of Public Health, the DCC, the California Department of Alcoholic Beverage Control, the California Department of Tax and Fee Administration, and state and local law enforcement officials, will begin immediate enforcement action, according to Newsom.

“The Department of Cannabis Control welcomes these regulatory reforms,” DCC Director Nicole Elliott said in the governor’s press release. “These rules are a critical step in ensuring the products in the marketplace align with the law’s original intent, and we are committed to working with our state partners to enforce state law.”

While the CDPH and Newsom said the regulatory ban intends to protect youth from adverse health effects associated with “dangerous hemp products,” patients under the age of 21 who rely on THC products for their medical needs may be eligible for a medical marijuana identification card administered by the CDPH.

Despite the public health intent of the regulations, hemp stakeholders view the governor’s ban as an industry-killing measure that would prohibit 90%-95% of hemp products in the California marketplace, according to the U.S. Hemp Roundtable (USHR).

“Today’s ‘emergency’ action by Governor Newsom is a betrayal of California hemp farmers, small businesses and adult consumers,” USHR General Counsel Jonathan Miller said in a public statement on Sept. 6. “After having supported [Assembly Bill] A.B. 45, which created a sound regulatory framework for the manufacture and sale of hemp products, Newsom’s administration fell on the job and failed to take any steps to enforce it. 

“Now, instead of addressing legitimate regulatory concerns shared by all good actors in the cannabis space—such as establishing reasonable policies to keep intoxicating products out of the hands of children—Governor Newsom instead has proposed a complete retail prohibition on 90-95% of popular hemp products for adults, including most nonintoxicating CBD products that he purports to support in his public communications.”

The USHR’s legal team submitted 40 pages of comments to the OAL on Sept. 16. Miller said the organization will explore all legal options with California hemp farmers and businesses that comprise the state’s industry.

The USHR also contends that the governor’s regulations are not an emergency and have “no basis in sound policy.”

Newsom’s emergency regulations went into effect roughly a month after the California Senate Appropriations Committee defeated the governor’s proposal to integrate hemp into the cannabis supply chain by killing Assembly Bill 2223.

The legislation, sponsored by Assembly Majority Leader Cecilia Aguiar-Curry, was initially intended to restrict products containing intoxicating hemp derivatives, including products with synthetically derived cannabinoids, from being sold at places like smoke shops, gas stations and liquor stores.

Before Newsom’s emergency regulations took effect Sept. 23, there was no law in California restricting the amount of THC milligrams in products with hemp derivatives, according to Humboldt County Growers Alliance Policy Director Ross Gordon.  

RELATED: California Governor’s Proposal to Integrate Hemp Into Cannabis Supply Chain Comes to Halt

Despite the 2018 Farm Bill federally legalizing hemp—defined as having no more than 0.3% THC on a dry-weight basis—Newsom’s ban on hemp-derived cannabinoid products in California is not unique. Not only is Missouri Gov. Mike Parson currently taking a similar approach through an executive order, but state attorneys general throughout the nation are taking action to quell the proliferation of intoxicating hemp products.

While the USHR agrees with Newsom that hemp products should be regulated and kept out of children’s hands in California, the organization believes the governor’s actions go much further.

Miller wrote in an open letter to Newsom on Sept. 12 that the governor was “misled” in his authority to issue the emergency regulations.

“You were also misled to suggest that a retail ban on hemp products with any detectable THC was sound policy,” Miller wrote. “There’s detectable THC in nearly every hemp product, including the large majority that are nonintoxicating. Prohibition never works, and it’s especially not effective in protecting children.

“You know quite personally that intoxicating products can be limited to adults—with enforcement of retail ID checks and new online software that provides meaningful age-gating. Most of the products you featured at your press conference are available at Total Wine, which doesn’t even allow kids in their stores. Just a few aisles down from the hemp section, you can find plenty of bottles of your PlumpJack Wine.”

Newsom co-founded PlumpJack Winery in the mid-1990s in Oakville, Calif.

“The alcohol regulatory model isn’t perfect, but it works well in shielding minors from intoxicants,” Miller wrote.