Alabama producer says it will fight back against state order on CBD

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An Alabama CBD maker said it will go to court to try to quash an order by state health officials that called on the company to stop promoting and selling its products.

The Alabama Department of Public Health (ADPH) ordered Gadsen-based Boro Hemp “not to sell, offer to sell, give away, or remove” products from its premises under rules for food processing.

An ADPH inspector visited the company’s operations in early January, afterward “admitting that our procedures met and exceeded requirements” of the health agency, said Eric Weaver, Boro Hemp’s marketing manager. Nonetheless, the ADPH ordered the company to destroy all its “food and food products” containing CBD nine days later.

Singled out

So far, Boro Hemp is the only CBD producer in Alabama to receive such a warning, which affects many of the products in the company’s portfolio, according to Weaver.

Alabama has no laws specifically outlawing CBD, which is derived from industrial hemp flowers, which are legal to grow under the 2018 U.S. Farm Bill that legalized hemp federally.

The state follows federal guidelines on hemp, but those rules have so far failed to address CBD specifically, leaving the compound in a gray area that has led to proliferation of such products in Alabama and across the country.

“If this goes through and they win this will affect every business in the state,” Weaver said.

Knock-on effects

Weaver said Alabama hemp farmers could suffer significant losses because a majority of their crops are used to produce CBD edibles, with the effect cascading down to wholesalers, retailers and consumers.

“Consumers will no longer be able to shop locally or ask questions to their trusted retailer. Instead, they will have to cross state lines to purchase such products or buy them online from unknown companies,” the company said in a statement.

Based on a public notice issued by the Attorney General’s Office that was most recently updated in August 2019, the state health agency issues “Do Not Sell – Food Condemnation Order(s)” when it discovers food that includes CBD in licensed food establishments, the agency said in a blog post last October.

“Food service establishments are allowed to sell CBD (provided it is of the legal strength), and customers are allowed to add their own separately purchased CBD to food or beverages they have purchased,” according to the agency, but producers may not sell products with the compound mixed inside.

Regulatory gap

After failing since 2018 to develop regulations for CBD in the wake of the Farm Bill, the U.S. Food and Drug Administration (FDA) eventually declared earlier this year that it could not set rules for CBD products as foods or supplements under the agency’s current structure, and called on Congress to do so through legislation.

FDA has repeatedly cited studies that say CBD could harm the liver and male reproductive system, and said little is known about how it interacts with drugs, and its effects on children and pregnant women. The agency has long called for more research into CBD but has done little to advance such studies, concentrating instead on issuing warnings to sellers over unsubstantiated health claims and flagging adulterated products.

Hulled hemp seeds, hempseed oil, and seed-based protein powder are allowed as ingredients in human food by the FDA. But CBD, which is derived from hemp flowers, is not expressly legal.

Delta-8 products

Boro Hemp sells a full range of flower-based CBD products including edibles, gelcaps, pet products, topicals and tinctures. The company also sells hemp-flower-derived delta-8 THC, a popular form of THC which, like its marijuana-derived cousin, delta-9 THC, produces a “high.”

Delta-8 THC, made by putting hemp-derived CBD through a synthetic process, is also unregulated because federal lawmakers failed to account for such forms of THC when they legalized hemp through the 2018 Farm Bill. The management of products that include delta-8 has proven a challenge for many U.S. states, with some banning them altogether and others treating them under rules for delta-9 “recreational” THC products.

Estimates hold that 75% of the current U.S. supply of CBD is going into the production of unregulated delta-8 products after massive attrition in the sector, where demand for over-the-counter oils and other products containing CBD did not reach inflated expectations. Supplies of hemp flowers eventually backed up, causing hemp biomass prices to plunge by as much as 90% over the past three years.

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