Harris Sliwoski: Bad News for Hemp THC Beverages in California

At some point in the last few years, people seemed to realize that getting a cannabis (marijuana) license is not cheap or easy, and that it’s a whole lot easier to sell intoxicating cannabinoid products. You’ve probably read some of our posts on like THCA or delta-8 products, for example. Another extremely popular alternative has been hemp THC beverages. But that may be starting to change, at least in California.

When we talk about hemp THC beverages, we mean beverages containing hemp-derived delta-9 THC. But wait, you may be asking, “doesn’t federal law only allow for up to 0.3% THC, so wouldn’t these products by definition not be intoxicating?”

The answer is yes and no. There is a federal law cap of 0.3% THC. But, hemp THC beverages can be intoxicating without hitting that threshold. A hemp THC beverage with 5 or 10 milligrams may be intoxicating, and depending on the product’s overall weight, may end up being less that 0.3% THC.

So based on this “loophole,” you can find hemp THC beverages all over the place. But that may not be the case for too long in California.

In April 2024, Governor Gavin Newsom issued a directive to the California Department of Public Health (CDPH) and Alcoholic Beverage Control (ABC) to take action to ensure that hemp products sold in California are lawful. His directive, styled “California Takes Action to Protect Youth from Illegal Hemp Products,” proclaims:

Mislabeled and misleading products do not belong in the marketplace—especially when they put our kids’ health and safety at risk… Today, the state is taking action to protect Californians, especially our kids, as we work to further close loopholes and increase enforcement to prevent children from accessing hemp and cannabis products.

Today’s notices come after a number of highly intoxicating hemp beverages have been seen in retail settings across the state – which could lead to them dangerously winding up in the hands of young Californians. Hemp products, which are separately regulated from the legal cannabis market, are required to comply with a number of consumer safety laws, including strict labeling requirements. Distributing or selling products that do not meet these requirements is a crime, and can result in the loss of an applicable license.

Concurrently with Newsom’s directive, CDPH and ABC issued their own general warnings to licensees concerning purportedly illegal products, here and here respectively.

On May 30, 2024, the California Department of Public Health (CDPH) issued a warning to consumers not to drink Mary Jones brand hemp-infused sodas because they allegedly contain delta-9 THC isolate. According to CDPH, this is a problem since, under state law, “hemp products” are defined as products that do not have THC isolate as an ingredient.

CDPH’s announcement is likely to have a chilling effect on the hemp THC beverages industry in California, as it shows that the agency views products it claims contains isolate THC as problematic. It remains to be seen whether it will take any other actions besides its May 30 warning.

Additionally, it remains unclear whether CDPH will take action against companies selling hemp THC beverages made without THC isolates. State law gives CDPH and other agencies a lot of power to go after companies that sell “adulterated” or “misbranded” products, and both of these definitions can be stretched very far regardless of the source of THC.

Also for what it’s worth, under state law, “THC” is defined to include:

(1) Tetrahydrocannabinolic acid.
(2) Any tetrahydrocannabinol, including, but not limited to, Delta-8-tetrahydrocannabinol, Delta-9-tetrahydrocannabinol, and Delta-10-tetrahydrocannabinol, however derived, except that the [CDPH] may exclude one or more isomers of tetrahydrocannabinol from this definition . . . .
(3) Any other cannabinoid, except cannabidiol, that the [CDPH] determines . . . to cause intoxication.

As you can see, it’s not only delta-9 THC isolate that could be a problem, but potentially any intoxicating cannabinoid that CDPH takes issue with.

As an aside, you may be wondering about federal law issues relative to hemp THC beverages in light of the recent proposed amendments to the upcoming 2024 Farm Bill that restrict intoxicating cannabinoids. I wrote about that amendment here, if you’re not familiar.

The amendment doesn’t specifically set any kind of restrictive milligram cap on hemp THC beverages that would effectively make them unlawful if intoxicating. However, what it does do is exclude from the definition of “hemp” products that contain “quantifiable amounts” of THC or other intoxicating cannabinoids.

What “quantifiable amounts” means is left up to federal regulators, so it’s entirely possible that the feds later adopt regulations that effectively prohibit intoxicating hemp THC beverages.

All of this is to say that for the time being, there is a lot of unknown for the hemp THC beverage industry in California and federally. Stay tuned to the Canna Law Blog for more updates.

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