California’s emergency regulations to ban products containing hemp-derived THC and other intoxicating cannabinoids will remain in effect after a Superior Court judge denied a temporary restraining order (TRO) request on Oct. 10.
Judge Stephen I. Goorvitch, of Los Angeles County’s Stanley Mosk Courthouse, ruled that the petitioners did not demonstrate sufficient irreparable harm to the hemp industry in their Oct. 3 filing for the TRO.
The U.S. Hemp Roundtable (USHR) petitioned for the TRO along with several California hemp farmers and businesses, including Cheech and Chong’s, Juicetive Inc., Blaze Life LLC, Boldt Runners Corp., Lucky To Be Beverage Co. and Sunflora Inc.
“Petitioners do not demonstrate that these regulations will cause widespread and catastrophic destruction of the hemp industry,” Goorvitch wrote in a 12-page order denying the TRO. “As an initial matter, the court notes that at least half of [the USHR’s] members operate outside California.”
Goorvitch did not note that hemp manufacturers from throughout the U.S. began shipping their products across state lines following the 2018 Farm Bill, which federally legalized hemp with the definition of containing no more than 0.3% delta-9 THC on a dry-weight basis.
The judge did recognize that hemp manufacturers can sell nonfinal food products with detectable levels of THC (e.g., hemp flower, lotions, etc.). However, under Gov. Gavin Newsom’s emergency regulations that went into effect on Sept. 23, industrial hemp food, beverages and dietary supplements intended for human consumption can no longer contain detectable amounts of THC or any “comparable cannabinoid” per serving.
In other words, edibles and drinks infused with delta-8 or delta-9 THC derived from hemp are now prohibited in California.
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“Manufacturers can sell THC through the legal cannabis system in California, i.e., with a license,” Goorvitch wrote. “Putting aside that petitioners’ declarations are speculative, at heart, they complain of lost revenue, which is not persuasive in establishing irreparable harm. The mere fact that these losses may be unrecoverable is not a basis to issue a temporary restraining order.”
In addition to the ban on food or beverage products with any detectable amount of intoxicating hemp-derived cannabinoids, the emergency regulations place a minimum purchase age of 21 for any hemp products intended for human consumption, according to the California Department of Public Health (CDPH), which the USHR lawsuit names as a defendant.
In addition, the regulations establish a maximum of five servings per package for industrial hemp food, beverages and dietary supplements.
The USHR argued in its TRO request that the emergency regulations are “horrendous to industry participants such as farmers, manufacturers, distributors and retailers, who will suffer significant financial injury.”
The industry organization also claimed that bypassing the regular rulemaking process, which includes public notice and comment, only adds additional harm to hemp industry participants. Certain hemp-derived products that had been manufactured, distributed and sold in California for several years now essentially became illegal overnight, according to the USHR.
Goorvitch’s TRO denial order “sided against common sense,” Jim Higdon, a USHR board member and founder of Kentucky-based Cornbread Hemp, said in a statement provided to Cannabis Business Times.
“The judge’s ruling to deny a temporary restraining order against Newsom’s hemp products ban announces that Californians will lose access to USDA-certified organic hemp products in retail stores across the state,” Higdon said. “At a time when the California cannabis dispensary system is undergoing a credibility crisis due to pesticide contamination, the governor has made it much more difficult for Californians to access the only cannabis products that consumers can be certain are free of pesticides—USDA-certified organic hemp products with third-party lab tests.”
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“Despite this setback, Cornbread Hemp, as a member of the U.S. Hemp Roundtable, will continue this fight the governor’s unconstitutional hemp products ban as this case goes to trial,” Higdon said.
The next trial setting for the lawsuit is scheduled for Nov. 22, 2024.
Goorvitch indicated in his TRO denial order that California’s interest is in protecting consumers, especially children.
When Newsom issued the emergency rules in early September for the CDPH’s regulations, the governor’s office stated that the intention was to “strengthen California’s ability to stop the peddling of intoxicating hemp products to California’s children.”
“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 a press release. “We’re taking action to close loopholes and increase enforcement to prevent children from accessing these dangerous hemp and cannabis products.”
As a result of the emergency rules going into effect on Sept. 23, California’s retailers—including vape shops, liquor stores, gas stations and convenience stores—had to immediately remove products with traceable amounts of intoxicating cannabinoids from their shelves and begin implementing the purchase restrictions for other hemp-related products.
According to the USHR, the ban has “no basis in sound policy” and serves as an “industry-killing” measure that prohibits 90%-95% of hemp products in the California marketplace.
“There’s detectable THC in nearly every hemp product, including the large majority that are nonintoxicating,” USHR General Counsel Jonathan Miller said in a public statement last month. “Prohibition never works, and it’s especially not effective in protecting children.”
This isn’t to say that USHR doesn’t support regulating the hemp industry. The USHR endorsed recently introduced legislation by U.S. Sen. Ron Wyden, D-Ore., that aims to prevent those under the age of 21 from buying intoxicating products containing hemp derivatives.
RELATED: US Senator Proposes to Federally Regulate Hemp Products, Not Prohibit
In California, the CDPH argues that the emergency regulations to prohibit hemp products altogether were enacted as a means to prevent widespread abuse that posed a public health risk.
Before the emergency regulations took effect on Sept. 23, there was no law in California restricting the amount of THC milligrams in products with hemp derivatives. The state argues that, without emergency intervention, a package with a 2-ounce industrial hemp cookie could contain roughly 170 milligrams of THC while still meeting both state and federal laws, according to the TRO denial order.
Editor’s note: This is based on 170 milligrams of THC divided by 2 ounces of a cookie (56,700 milligrams) equating to 0.3% THC on a “dry-weight” basis.
Under California’s licensed and regulated cannabis industry, edible products are limited to 10 milligrams of THC per serving and 100 milligrams of THC per package.
“The state’s interest in protecting the health and safety of its residents—especially children—and closing a loophole that permitted the distribution of high doses of THC outside the regulated cannabis system outweighs the potential economic harm references in [the] petitioner’s declarations,” Goorvitch wrote.
The Superior Court judge ruled that the U.S. Hemp Roundtable and others did not establish ‘irreparable harm’ in a temporary restraining order request. Read More