Our office has gotten a number of questions lately about cannabidiol (CBD) and products containing CBD. This Legal Update is intended to provide a general overview of the legal landscape. Specific questions should be directed to legal counsel.
CBD is a non-intoxicating molecule found in industrial hemp and marijuana. CBD oil is extracted when either plant is processed. CBD derived from industrial hemp typically is tetrahydrocannabinol (THC)-free, but CBD derived from marijuana may contain some of the compound THC, which makes users “high.”
The distinction of source is important for regulatory reasons. The California Department of Public Heath (CDPH), Manufactured Cannabis Safety Branch (MCSB), regulates medicinal and adult-use manufactured cannabis products. Food products derived from industrial hemp fall under the jurisdiction of the CDPH, Food and Drug Branch (FDB). State law generally requires the CDPH, FDB, to incorporate into state law relevant federal law regarding food additives, dietary use products, food labeling, and good manufacturing practices for food. Currently, the U.S. Food and Drug Administration (FDA) has determined that it is prohibited to introduce or deliver for introduction into interstate commerce any food to which THC or CBD has been added, regardless of the source (i.e., regardless of whether it is derived from industrial hemp or marijuana).
Accordingly, under California law, the manufacturing and sale of cannabis products (including edibles) is permitted, but the use of CBD derived from industrial hemp in food products is prohibited. Until the FDA rules change or California makes an independent determination of safety, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. CBD derived from cannabis may only be sourced from, produced by, and sold by those with commercial cannabis licenses to persons aged 21 and older.
The CDPH, FDB, put out a Frequently Asked Questions on this subject on July 6, 2018. Since that time, state and local health officials have been requiring some small businesses to pull products that are not in compliance with federal and state law regarding CBD in food and supplements. Pending legislation (Assembly Bill 228) could amend state law on this matter.
Implications for Schools
Schools should prohibit all food and supplements containing CBD allegedly derived from industrial hemp, as those products are not permitted in California.
Schools should continue to prohibit all cannabis products on school campuses, including those containing CBD. It continues to remain unlawful under federal and state law to possess and/or use marijuana or cannabis on a school campus when children are present. Please reference Legal Update No. 41-2016 for more information on this topic.
Please contact our office with questions regarding this Legal Update or any other legal matter.
Legal Update written by Jennifer E. Nix, Associate General Counsel.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
© 2019 School and College Legal Services of California
All rights reserved. However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.
 Under U.S. law, a cannabis plant consists of “hemp,” which is the stalks, stems, and sterilized seeds of cannabis sativa, and “marijuana,” which is the leaves, flowers, and viable seeds of cannabis sativa.
 CBD oil is different from hemp seed oil.
 The definition of “food” includes any article used or intended for use for food, drink, condiment, or chewing gum. It does not include products containing cannabis, including cannabis edibles.
 Please note that you must be aged 21 and older to purchase any cannabis product, and persons under age 21 must possess a medical marijuana card in order to possess any cannabis product.