THE ENEMY WITHIN… CBD under attack
By Steve Sarich
Since the passage of the Farm Bill, at the end of December, I’ve been carefully tracking any new state legislation relating to either industrial hemp or hemp derived CBD. I’ll explain that in more detail shortly, but it was only this last week that a piece of legislation showed up on my radar that was so deceptive, so purely diabolical, that I thought that I had to bring it to your immediate attention.
When I showed this bill to others, some of whom are veterans in the hemp industry, and they couldn’t see the issues I had with this bill until I explained them carefully, I recognized the need for me to provide a little legislative education as well.
This bill is such a textbook example of malevolent and devious legislation, that I thought this article could provide both an alert on this particular legislation, but will also serve as a primer on how to spot this type of devious legislation when, and if, it pops up in your state in 2019.
I will provide you a forensic examination of this deceptive bill, which will convince you, beyond any reasonable doubt, that this bill, California AB-288, was designed to trick you into believing that it would protect industrial hemp products and CBD from being banned, as “adulterants,” from food products, beverages, and cosmetics in the state of California.
I believe that when you read this bill below, before reading my forensic analysis, I’m willing to bet that you would have voted for this bill. It was so creatively done, that you might have even been convinced enough to even to get others to support it. I know this because I’ve already seen it happening this last week. I believe that once you read this article there will be no doubt in your mind, whatsoever, that this bill was designed to trick you, and others, into voting for it, and that this was done with malice aforethought. This article is likely to make you angry, as it rightly should. Hopefully, it will also educate you on what to look for in future legislation, so you never get tricked again.
We clearly have enemies within our own ranks, and they are not only supporting this legislation very publicly, but they are encouraging others to do so. That and should concern all of you greatly. These are truly nefarious characters.
I first learned to analyze, and later write, legislation as an activist in the medical cannabis movement. It seemed like every time a new medical cannabis bill got passed, we later discovered what we called the “gotcha’s” that had been written into the bill, which we totally missed initially, even when meticulously combing through the language of legislation, word by word.
I finally came to realize that reading legislation is more akin to deciphering enemy code or interpreting Sanskrit than it is to read a legal document. I came to realize that it’s frequently written to deceive. It’s meant to keep the average voter, or even those legislators voting on a bill, from understanding the truly devious intent of those proposing and lobbying for the legislation. Once I realized this, I was determined to learn how to decipher this encryption in order to stop bad legislation from getting passed in the first place.
The 2018 Farm Bill
Those of you who follow my articles, you probably know already that I was concerned and dismayed with a couple of changes that showed up in the 2018 Farm Bill when it came to industrial hemp and CBD.
First, it “turned loose the dogs” at the FDA, who we all know are bought and paid for by the pharmaceutical industry. As I predicted, the FDA is already making up new policies, through their own ‘creative interpretation’ that would hand THC and CBD to the pharmaceutical industry for their exclusive use as “drug ingredients”. According to this new interpretation, any new cannabinoid showing up in an FDA approved prescription drug will now automatically become a “drug ingredient”, which will give the pharmaceutical industry a monopoly on the use of all cannabinoids, as well as products made from them.
(See link to this below: “The FDA and other nefarious characters”)
Secondly, and equally as important, while the bill removed hemp from the Federal CSA, making hemp, for the most part, ‘legal’ on a federal level, it stole back that hard-won protection by giving the states new authority to ignore the federal status of hemp. It actually gave the states the right pass criminal laws on hemp and CBD at a state level.
Within less than a month of the passage of the Farm Bill, we are already seeing state actions against CBD and hemp that were previously unheard of. We currently have two black men sitting in an Oklahoma jail cell, each with a bail of $80,000. It looks like they could be sitting there for months, and their only crime, it appears, was “interstate transportation of hemp”, which is federally legal, but is now questionably legal on a state level. And this is only one of the aggressive enforcement actions that we’ve already seen on a state level thanks to this new change the 2018 Farm Bill.
What I’ve also predicted is that state legislators, who, from a lobbying standpoint, are much more “affordable” for the pharmaceutical industry to sway to their side, will now start passing new legislation that will further restrict, or even ban, the production, processing, sales, or use of non-pharmaceutical hemp derived CBD products.
The legislation that I’m addressing here, I believe is a direct result of the influence wielded by the pharmaceutical industry in California, as well as some lobbyists, who may be getting their funding from both sides, but only have allegiance to one of those sides; the one with the deepest pockets. I’ll have more on that later.
California Bill AB-288 – The Trojan Horse
Here is the entire text of California’s AB-288. As I suggested earlier, I highly encourage you to read every word of it and see if you can spot the “gotcha’s” in this legislation before reading my analysis. In reading it, please form your own opinion of what this law, if passed, would actually do with regard to the legal utilization of hemp and CBD in food products, beverages and cosmetics, under California law.
CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION
ASSEMBLY BILL – No 228
Introduced by Assembly Member Aguiar-Curry
January 17, 2019
An act to add Sections 110611 and 111691 to the Health and Safety Code, relating to hemp.
LEGISLATIVE COUNSEL’S DIGEST
AB 228, as introduced, Aguiar-Curry. Food, beverage, and cosmetic adulterants: industrial hemp products.
Existing state law, the Sherman Food, Drug, and Cosmetic Law, prohibits the manufacture, sale, delivery, holding, or offer for sale of adulterated foods, beverages, or cosmetics. Existing law prescribes when a food or beverage is adulterated, including if it bears or contains any poisonous or deleterious substance that may render it injurious to the health of a person or other animal that may consume it. Existing law prescribes when a cosmetic is adulterated, including when it bears or contains a poisonous or deleterious substance that may render it injurious to users under the conditions of use prescribed in the labeling or advertisement of the cosmetic, under customary or usual conditions.
This bill would state that a food, beverage, or cosmetic is not adulterated by the inclusion of industrial hemp products, including cannabidiol derived from industrial hemp, and would prohibit restrictions on the sale of food, beverages, or cosmetics that include industrial hemp products or cannabidiol derived from industrial hemp-based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 110611 is added to the Health and Safety Code, to read:
- A food or beverage is not adulterated by the inclusion of industrial hemp products, including cannabidiol derived from industrial hemp. The sale of food or beverages that include industrial hemp products or cannabidiol derived from industrial hemp shall not be restricted or prohibited based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.
SECTION 2. Section 111691 is added to the Health and Safety Code, to read:
- A cosmetic is not adulterated because of the fact that it includes industrial hemp products, including cannabidiol derived from industrial hemp. The sale of cosmetics that include industrial hemp products or cannabidiol derived from industrial hemp shall not be restricted or prohibited based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.
That’s the whole bill, so what do you think? Sounds simple enough, right? If that’s what you think, I’m going to show you where you’re very wrong.
Analyzing Legislation – Tips and Tricks
When analyzing a piece of legislation you always want to look for modifiers, or sneaky little things that are added, or left out, that modify the ability of the bill to provide the actions stated its intent section. Modifiers are often used to provide loopholes that keep the bill from completely delivering on doing what it promises to do. Or in drastic cases, this can actually cause a result that is 180 degrees opposite of the stated intent. Modifiers are your first tip-off when something is not right.
The other thing I routinely do if the bill is adding or removing language from an existing statute is to thoroughly review the current wording of that statute to see what actual effects the new changes will have. I look for ‘unintended consequences’ that may not be all that unintended. Failing to do this step is a critical mistake. It’s like reading a single sentence out of context.
I always look to see if what the bill does is actually legal and proper under the statute they are altering, and check to see if they have legal authority make the changes the legislation is calling for. Illegal state legislation is passed every day in this country, so you should never assume that what they are doing is actually legal.
As silly as this may sound, ask yourself is the bill really needed, and if it’s not, what is their actual intent, as opposed to their stated intent.
Now I’m going to show you how to put these tools to work!
The Forensic Breakdown
On my first read through I immediately found a modifier sticking out, and you may have noticed it too.
“shall not be restricted or prohibited based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.”
This appears not once or twice, but three times. Chances are if you’re like most people you saw it, and maybe wondered about it for a second, but since it didn’t seem to have any obvious significance, you skipped right on by it, without another thought.
This little modifier is a qualifying statement. It says you can’t restrict or prohibit if it contains what? The answer is right there, ‘industrial hemp products’ or ‘cannabidiol’. So why is this “solely” qualifier in there?
Well, it implies that if there is something else in there, that something else might actually allow the products to be “restricted” or “prohibited”. So now we have a missing modifier that would give that “solely”, a reason to be in there, and it’s there three times, so it’s not an oversight.
You’re going to kick yourself if you haven’t already figure out what that missing modifier is. Yep, there is not just one, but two cannabinoids, in hemp products, with the exception of CBD isolate. They put in one, cannabidiol, but purposely left out the other, THC. Sneaky bastards, right? But we’re far from done here.
So now if they find any THC in a food, beverage or cosmetic product, it has no protection. All they have to do once this bill gets passed is to go back and put that qualifier in there and all products containing hemp oil, for example, will now be considered “adulterated” under California state law.
We’re still not done. So what about the CBD isolates that have no THC in them, certainly they must be OK, right? Sorry, the FDA has determined that CBD isolates are a “drug ingredient,” so when they revisit this issue in Sherman, the other qualifier will be “no drug ingredients” in food, beverages or cosmetic products in California.
Yes, if this law passes the entire hemp/CBD industry in California will be permanently screwed, but let’s finish this forensic analysis because I really don’t want anyone arguing for a minute that any of this was done by “accident”, or through “incompetence”. Let’s apply some of the other tools and you’ll see that this was just plain diabolically devious, and it’s exactly what the pharmaceutical industry wants, total ownership of all cannabinoids.
So let’s examine what the need for this bill was. You’ll now see how important this seemingly simple question is when analyzing bills.
Let’s start with the Sherman Food, Beverage and Cosmetics Act. Were hemp products and CBD ever in danger of being declared “adulterants” under Sherman?
Here’s the definition of “adulterated” under Sherman:
Article 5. Adulterated Food
- Any food is adulterated if it bears or contains any poisonous or deleterious substance that may render it injurious to health of man or any other animal that may consume it. The food is not considered adulterated if the substance is a naturally occurring substance and if the quantity of the substance in the food does not render it injurious to health.
So the answer to that question is, NO! Hemp products and CBD would have never qualified as “adulterants” under the Sherman definition. This was an effort to legislate them into Sherman and then force them to qualify as adulterants.
With passing a bill with preapproval of industrial hemp and specifying only the CBD brings hemp into the Sherman Act’s scope. This allows hemp to be examined for other cannabinoids, then specific exemptions for specific combinations of cannabinoids which otherwise would be classed as “adulterants” in specific concentrations and combinations can be specifically applied for and exempted SKU by SKU. This was setting up exclusion from food and supplements of industrial hemp by regulatory capture.
This was deviously brilliant.
FACT: Food ingredients that are not considered adulterants are not listed anywhere in Sherman. This would have been the only exception in the 84-page bill. The ONLY things that are listed anywhere in the Sherman act are things that have met the definition of an adulterant, and thus cannot be used. This was an obvious attempt to force hemp and CBD into the act by later saying that “drug ingredients” and “THC” would be considered adulterants.
FACT: Hemp seed oil and hemp seed are now both already considered GRAS (“generally accepted as safe” food ingredients). So they didn’t need this “exemption” from Sherman.
The coup de grace in this would have been that, once it was determined that any of these ingredients, whether it was CBD isolate, or THC, were adulterants, these products would have fallen under this section of Sherman:
- It is unlawful for any person to manufacture, sell, deliver, hold, or offer for sale any food that is adulterated.
This would have finished off both hemp and cannabis products in California. It would have been the biggest win yet for the pharmaceutical industry.
We all need to all understand that the most fervent opposition to both the unrestricted growing of industrial hemp, as well as the production, processing, and sale of CBD (cannabidiol) products, is, first, and foremost the pharmaceutical industry, who clearly want a monopoly on all things cannabis, right down to the seeds.
More specifically, the key players are GW Pharmaceutical, Bayer-Monsanto, and George Soros, and they’ve been spreading the money around. For those of you that aren’t aware of this, with the acquisition of Monsanto, Bayer is now also the largest seed company in the world.
So will someone tell me why the US Hemp Roundtable has been pushing this terrible piece of legislation to their paying members? If I were a member, I’d be questioning whose side the HRT is actually working for….and I’d be asking for my $25,000 back…tomorrow.
More on nefarious characters coming up next!
About the author:
Steve Sarich is a court certified legal expert on cannabis, as well as an expert on regulatory and legislative issues. He has written, and passed, hemp legislation in both Washington State and Kentucky, including the landmark legislation in Washington State, in 2017, making Washington the first, and only, state to remove industrial hemp from a state Controlled Substances Act.
Steve now lives in Chiang Mai, Thailand, and is helping to establish their newly legal medical cannabis and hemp industries there.
California AB – 288
The Sherman Food, Beverage & Cosmetics Act