California’s ban on certain hemp products clears early legal challenge

California’s emergency ban on certain hemp products cleared a legal challenge Friday brought by cannabis businesses that sought to block the new rules.

Los Angeles County Superior Court Judge Stephen Goorvitch denied the businesses’ request that he issue an order which would have temporarily allowed hemp sales while a lawsuit over the ban proceeded. The new regulations took effect in September.

In a ruling filed Friday, the judge called the temporary restraining order sought by the businesses a “drastic remedy” because it would have meant hurriedly blocking the implementation of the emergency regulations before a trial when the state and businesses would be able to fully present their cases.

“The potential harm to Californians, especially children, outweighs the potential that individual hemp businesses will not be able to adapt to the new regulations,” Goorvitch said in the ruling.

The decision is a blow to cannabis companies that filed a lawsuit challenging the new rules over concerns that hemp businesses will lose millions of dollars and some small businesses will be forced to shut down.

Jonathan Miller, general counsel of the U.S. Hemp Roundtable, said in a statement that the group is “disappointed with the court’s decision” and is reviewing its next steps in what could be a long legal process.

“We still hold out hope that Governor [Gavin] Newsom will come to the table and work with industry to achieve our mutual goal — to robustly regulate hemp products and keep them out of the hands of children — without devastating hemp farmers, business and consumers as does his emergency regulation,” Miller said.

The ruling keeps in place emergency regulations the state issued as part of an effort to protect young people from potentially dangerous hemp products. The U.S. Hemp Roundtable and hemp businesses such as JuiceTiva, Blaze Life and a cannabis company run by comedy duo Cheech Marin and Tommy Chong sued a California public health agency to block the enforcement of the new rules.

The regulations ban the sale of hemp-based food, beverages and dietary products containing detectable amounts of THC, a compound found in the cannabis plant that contributes to the mind-altering high associated with cannabis use, along with other intoxicating chemical substances. The new rules also state that people must be at least 21 years old to purchase hemp products and limit the number of servings of hemp products to five per package.

In denying the preliminary injunction, Goorvitch said the hemp coalition had failed to meet its burden of demonstrating it was likely to prevail at trial and that it stood to suffer irreparable harm if the ban on sales wasn’t blocked. Businesses can still sell hemp products without detectable levels of THC and “non-final food products” such as hemp flour and lotions with detectable levels of THC, the ruling said.

Jim Higdon, co-founder of Cornbread Hemp and a U.S. Hemp Roundtable member, said he thinks the judge doesn’t fully understand the industry and made the “wrong decision.”

“There’s a whole class of hemp businesses this ruling will destroy,” he said.

Higdon said his Kentucky business, which sells products such as hemp gummies and oil, has California retailers it wants to work with but it hasn’t been able to get its product on the retailers’ shelves because of the “regulatory uncertainty” in the state.

The California Department of Public Health proposed the ban because of concerns that hemp products with THC could harm young people whose brains are still developing. Consuming some of these products could “negatively impact cognitive functions, memory, and decision-making abilities,” the agency said in its findings. The agency didn’t immediately respond to a request for comment but typically doesn’t comment on pending litigation.

“We applaud the court for refusing to block California’s hemp regulations to protect consumers, especially children,” Tara Gallegos, a spokesperson for Newsom, said in a statement. “The court didn’t buy this attempt to reopen a loophole used by bad actors in the hemp industry to push dangerous intoxicating products into gas stations and corner markets.”

Some people consume hemp products with THC for relief from pain, anxiety, insomnia and other issues. People who rely on products for medical needs will still be able to obtain them through licensed adult-use and medical cannabis dispensaries, according to the state.

In the lawsuit, filed in Los Angeles County Superior Court, hemp businesses called the new rules “draconian” and compared them to “requiring candy to stop containing sugar.” The businesses allege in the lawsuit the agency violated state and federal laws, including those that legalized the production of hemp and govern the rulemaking process.

A trial setting conference is scheduled in late November.