U.S. Hemp Roundtable Submits Comments to California’s OAL in Opposition to Proposed Emergency Regulations on Hemp-Derived Cannabinoids

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The U.S. Hemp Roundtable submitted comments to California’s Office of Administrative Law (OAL) on September 16th, urging the agency to overrule emergency regulations proposed by Governor Gavin Newsom and the California Department of Public Health (CDPH). The comments were submitted by Frost Brown Todd LLP, on behalf of the U.S. Roundtable and 7 Generations Producers LLC, Boldt Runners Corporation, Cheech and Chong’s Global Holdings, Good Stuff Manufacturing, Juicetiva Inc., Rose Los Angeles Inc., and SunFlora Inc. The regulations can only go into effect upon approval from OAL. In its comments, the association argues that the emergency regulations are illegal because they violate provisions of the Administrative Procedure Act (“APA”) and the California Health & Safety Code. The comments state:

“…the Emergency Regulations may not be enacted on an emergency basis because the APA and California Health & Safety Code section 110065 expressly prohibit it. While it may have been possible for the Department to implement the proposed age restriction and THC serving and package limits in its initial rulemakings in 2022, the Department chose not to and cannot now rely on section 110065 for rulemaking on an emergency basis. Cal. Health & Safety Code §§ 110065, 111921.3., 111922. Further, the Department is proposing to adopt the Emergency Regulations on an emergency basis but has failed to provide the specific facts and substantial evidence required under Cal. Govt. Code section 11346.1 to demonstrate that an emergency situation exists. There is no emergency here. Age limits can be imposed through the regular rulemaking process. The same applies to regulations about THC content and serving sizes. Hemp products that may have impairing effects can continue to be sold to adults, alongside other intoxicating products such as beer, wine, and liquor.”

Additionally, the regulations conflict with federal law, namely the 2018 Farm Bill which made hemp with a concentration of delta-9 THC at or below 0.3% legal, says U.S. Hemp Roundtable. The proposed regulations prohibit “any detectable amount of” THC.

According to the comments, “The current Emergency Regulations are a backdoor method to engage in illegal and unconstitutional rulemaking. The Department has chosen a legally improper path. Any effort to impose limits or bans on hemp products should proceed through the regular rulemaking process, not the emergency rulemaking process.”

Stakeholders had until September 17th to submit comments to the OAL.