Nevada County enforces FDA rules on CBD sales
When BriarPatch Food Co-op’s general manager got a note from the Nevada County Department of Environmental Health explaining the grocer couldn’t sell CBD as a dietary supplement, he was surprised.
Chris Maher had a different understanding of the law.
“We’re receiving contradictory opinions from the producers (of CBD),” Maher said.
On March 5, BriarPatch was part of a county-wide notice informing businesses that CBD, a non-psychoactive chemical compound derived from cannabis and hemp, cannot be sold as a dietary supplement.
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That is, food businesses could only sell CBD as a topical treatment, not a food product.
“If it was a vitamin or other lotion or other products like that — something that wasn’t governed by the (Food and Drug Administration) — it was OK,” said Amy Irani, director of the Nevada County Department of Environmental Health.
The order, determined by the California Department of Health via rules from the FDA, startled some Nevada County businesses.
“It kind of took us by surprise by the way it happened,” said Louann Renfrew, supplement buyer with California Organics.
Irani said their notice was a voluntary removal order, meaning the agency was not removing the product from the shelves. Rather, department officials conducted annual inspections to ensure retailers had followed their request, and would only pull the item if it was still present.
“Most of the time, retailers will send (a product) back and get a credit,” said Irani, adding that the department did not want to penalize food businesses.
“I believe in education more than enforcement,” she said.
What confused some businesses like California Organics and BriarPatch was that the Food and Drug Administration’s order hadn’t been universally enforced in California counties. In Sacramento, Maher said, he saw CBD dietary supplements in food retail shops. Renfrew saw the same in Placer County.
“Why is there such a difference between Nevada County and Placer County?” Renfrew asked.
HOW it all started
In February, Irani received word from the California Department of Health that a Nevada County business was illegally selling CBD chocolate.
For about a month, the state health department and the county environmental health department corresponded to understand the law under the FDA. The federal agency states that “all cannabinoids, including CBD, are impermissible additives that adulterate food and supplements for both humans and animals.”
Further, the administration does not differentiate as to whether CBD is derived from hemp or cannabis. All CBD is considered an illegal food ingredient.
Thus, after reviewing the matter with the California Department of Health, Irani said she informed businesses that food retailers can’t include CBD as dietary supplements.
‘A LOCAL CALL’
Businesses have been confused, however, on the legalities around the sale of CBD because of the 2018 Farm Bill. That legislation no longer classified CBD as a Schedule I controlled substance, significantly broadening its use. None of this, however, altered the Food and Drug Administration’s view that it had authority over CBD products.
Irani said she followed the lead of state Department of Health, which follows the Food and Drug Administration, not the 2018 Farm Bill. Ultimately, it’s up to her agency to regulate how retailers act.
“The local enforcement agency holds the permit on retail,” said Irani, therefore bestowing them power to enforce the law.
This leaves inconsistency of enforcement across counties because all counties are not doing the same thing, said Irani.
“I’m sure you can go to Placer County and get (CBD),” said Irani. “It’s a local call.”
PUSH FOR CHANGE
In January, Assembly Bill 228 was introduced in the California state legislature in order to clear things up for retailers, allowing CBD derived from hemp to be sold as a food product.
“There is massive ambiguity in the (current) law,” said Steve Maviglio, a political consultant working with CV Sciences, a CBD pharmaceutical company based in Las Vegas.
Due to confusion in the law, “state regulators have begun cracking down,” he said, in some cases seizing products and stripping liquor licenses for continued sale of CBD. In other cases, he said, there has been no enforcement at all.
Maviglio said Assembly Bill 228 has bipartisan support, and is currently sitting in appropriations committee. The bill would allow the unambiguous sale of CBD from industrially sourced hemp.
The political consultant said the bill has an urgency clause, meaning it will go into effect once signed by the governor.
“The timeline is hard to say,” said Maviglio of the bill’s potential passage. “Could be weeks, could be months.”
For now, Nevada County food retailers are under enforcement from the county.
Maher of BriarPatch believes much of the confusion around the law is undergirded by cultural understanding of cannabis.
“I think we’re still disentangling the fear,” he said.
Contact Sam Corey at (530) 477-4219 or at firstname.lastname@example.org.
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