Cheech and Chong Go to Court: Legal Challenges to California's Prohibition of Hemp in Food Products
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CHEECH AND CHONG GO TO COURT:
LEGAL CHALLENGES TO CALIFORNIA'S PROHIBITION OF
HEMP IN FOOD PRODUCTS
JORDAN PARADISE, J.D.*
The status of federal law on marijuana has remained stagnant for decades
despite frequent calls to decriminalize it, reschedule it, and release those
individuals that have been imprisoned for use and sale of it. In the persistent
absence of federal action to change the status quo, states have begun to move
into the regulatory space. Several states have provided legal mechanisms to sell
and distribute marijuana, establish dispensary businesses, and tax it as a
mainstream product. Cannabis and marijuana are both terms that refer to the
Cannabis sativa plant.' Cannabis, as a scientific term, refers to a broad family
of plants; only some ofthat plant family produce tetrahydrocannabinol, or THC,
a chemical with well-documented psychoactive effects. The term marijuana
typically refers to the substances and products that contain THC. Products
containing cannabis span a vast array of applications, from medicinal to
recreational, including the increasing use of THC-containing ingredients in
food, beverages, and dietary supplements.
This article explores the realm of hemp regulation as it relates to the broader
landscape of marijuana and cannabis law and policy, looking to the state of
California as a model for increased oversight of hemp-containing products that
pose a danger to public health. Section I describes the three key federal agencies
involved in cannabis law and the recent actions to reschedule and to develop a
feasible path to regulation. Section II defines the scope of industrial hemp under
federal legislation and presents several loopholes created by that legislation.
Section III explores California's recent emergency action involving intoxicating
hemp and related litigation challenging the state's authority. Section IV
addresses general trends in state and global regulation of intoxicating hemp
products.
I. FEDERAL SCRUTINY OF CANNABIS AND CANNABIS-DERIVED PRODUCTS:
THE DOJ, THE DEA, AND THE FDA
Recently, in May 2024, the Department of Justice (DOJ) through the Drug
Enforcement Administration (DEA) put forth proposed regulations to
reschedule marijuana from Schedule I to Schedule III under the authority in the
Controlled Substances Act (CSA).2 Schedule I under the CSA means that the
*Beazley Chair in Health Law; Georgia Reithal Professor of Law; Faculty Director, Beazley
Institute for Health Law & Policy, Loyola University Chicago School of Law. Author email:
jparadise@luc.edu.
1. This article will use both the terms marijuana and cannabis.
2. DRUG ENFORCEMENT ADMINISTRATION, Rule, Schedules of Controlled Substances:
Rescheduling of Marijuana, 89 Fed. Reg. 44597 (proposed May 21, 2024), available at https://
www.regulations.gov/document/DEA-2024-0059-0001 [https://perma.cc/DGX6-PF74]; Office
of Public Affairs, Justice Department Submits Proposed Regulation to Reschedule Marijuana,
DEPARTMENT OF JUSTICE (May 16, 2024), https://www.justice.gov/archives/opa/pr/justice-
department-submits-proposed-regulation-reschedule-marijuana [https://perma.cc/7PRR-H9LE].](ViewImageLocal?handle=hein.journals/iicl35&div=16&collection=&method=preview&ext=.png&size=3)
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Cheech and Chong Go to Court: Legal Challenges to California's Prohibition of Hemp in Food Products
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