Yet another state is cracking down on hemp-derived products, some of which have intoxicating effects, and South Carolina’s approach to food products that contain hemp is among the most extreme.

The South Carolina Department of Health and Environmental Control (DHEC) issued a warning in a letter dated Jan. 22, banning the manufacture, distribution, and sale of food and beverage products containing hemp-derived products as ingredients in the state’s marketplace.

While CBD products can easily be found in most states thanks to a lack of clarity in federal regulations, the U.S. Food & Drug Administration (FDA) has repeatedly warned that products containing CBD are illegal under the Federal Food, Drug, and Cosmetic Act. 

The FDA routinely issues warnings that adding CBD to a food means those products are adulterated, or against products with any sort of medical claims, but the agency has delayed finalizing rules.

“Therefore, the following hemp products are NOT APPROVED to be added to food or beverage products,” the letter reads. 

• Viable, non-sterilized hemp seeds, raw hemp leaves, and raw microgreens, and any other raw, unprocessed form of hemp biomass as they are considered “plant material” and may not be possessed without a Grower or Processor License
• Pure CBD Isolate
• Delta-8 THC, Delta-9 THC, or Delta-10 THC
• THC-0 or any other derivative
• “Full spectrum” whole-plant extract (i.e. “full spectrum hemp oil/extract” from biomass) if it includes health claims, or bears any sort of declaration of THC or CBD
• Any hemp product that is NOT manufactured in a food-grade establishment inspected under GMP or cGMP regulations.
• Any hemp or hemp-derived product that promotes its medical or health benefits

The only exceptions are basically hemp seed derivatives. “The FDA evaluated three Generally Recognized As Safe (GRAS) notices for hemp products and found that the use of such products as described in the notices is safe. Therefore, the following hemp products may be legally marketed in human foods and are APPROVED to be used as ingredients in food and beverage products,” the letter continues.

• Hulled hemp seed (GRAS Notice GRN No. 765; FDA Response Letter),
• Hemp seed protein (GRAS Notice GRN No. 771; FDA Response Letter)
• Hemp seed oil (GRAS Notice GRN No. 778; FDA Response Letter)

“While DHEC’s goal is to educate while we regulate this growing niche of manufacturers and distributors of foods and beverages containing hemp-derived products as ingredients, our obligation under the requirements of both federal and state law is to remove from commerce all food and beverage products containing non-conforming hemp-derived products as ingredients,” Sandra Craig, Director of the DEHC’s Division of Food and Lead Risk Assessments, said in a letter announcing the bans.

Sellers can use full-spectrum whole-plant extract as an ingredient in food and beverage products if and only if the hemp-derived ingredient meets the following requirements: 

• A “full spectrum” hemp oil or extract from biomass contains the naturally occurring ratios and array of phytonutrients found in hemp.
• Using a full spectrum hemp oil as an ingredient must be referred to in the ingredients list on the food or beverage label as “Full Spectrum Hemp Oil” or “Full Spectrum Hemp Extract.” The label may not contain health claims and may not bear any sort of declaration of “THC”, “CBD”, or “Delta-9” products or isolates.
• When companies in South Carolina receive their “full spectrum hemp oil/extract” from their approved supplier, it must contain no more than 0.3% Delta-9 THC, as evidenced by Certificates of Analysis (COAs). The use of concentrates or “work in progress hemp oil from biomass” containing more than 0.3% Delta-9 THC, is illegal. Companies may NOT use “crude” hemp-derived oil, “work in progress” hemp oils over 0.3% Delta-9 THC, non-food grade oils, or dilute hemp oils containing an illegal amount of THC (> 0.3%) to a “legal” level. Hemp products containing more than the legal limit of THC are no longer considered to be hemp but are a Schedule I Drug. Hemp products that contain more than 0.3% THC are NOT ALLOWED to be possessed by anyone in South Carolina, and they are NOT ALLOWED to be introduced into foods or beverages.

The letter also bans any mention of THC, dosages, and several other restrictions. The letter also reminds hemp sellers that only intrastate hemp product sales are allowed.

But they’re not only going after hemp-derived cannabinoid products that are synthetically derived from hemp biomass, and known for psychoactive effects—i.e. delta-8 THC, THC-O, etc.—they’re going after products with CBD, hemp leaves, plant material and more as well. Delta-8 THC only appears in nature in minute amounts, and intoxicating amounts have to be re-added to hemp via refluxing process in a lab. This is why states are opting to either crack down on it or regulate it like marijuana. The 2018 Farm Bill opened a legal loophole, accidentally legalizing these ingredients. Delta-8 THC products seeped into the medical markets in some states.

At least a dozen other states are actively pursuing solutions to ban hemp-derived products in one form or another.

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