California Judge Harshes Cheech And Chong’s Mellow, Rejecting Effort To Halt New Hemp Product Ban

An industry effort to halt California’s enforcement of new emergency regulations banning consumable hemp products fell short on Friday, with a state judge denying a request for a temporary restraining order.

The court said that petitioners—including the trade group U.S. Hemp Roundtable, Cheech and Chong’s cannabis company and other product manufacturers—failed to demonstrate that enforcement of the new emergency hemp regulations will cause them sufficient irreparable harm.

“At heart, they complain of lost revenue, which is not persuasive in establishing irreparable harm,” Superior Court Judge Stephen I. Goorvitch wrote in the new order, adding: “Even if the court gives Petitioners the benefit of the doubt and assumes that certain hemp-related businesses cannot operate effectively under the new regulations, Petitioners still do not demonstrate sufficient irreparable harm.”

Goorvitch further opined that any harm to the companies must be weighed against risks of intoxicating hemp products falling into the hands of children.

“This court acknowledges that economic loss can constitute irreparable harm, e.g. if a company will be shuttered,” he wrote. “But any discussion of irreparable harm necessarily requires consideration of harm that is likely to result from granting the stay. The State’s interest in protecting the health and safety of its residents—especially children—and closing a loophole that permitted the distribution of high doses of THC outside the regulated cannabis system outweighs the potential economic harm referenced in Petitioners’ declarations.”

To meet the bar for a temporary restraining order, a party must show a risk of irreparable harm and demonstrate a likelihood that they’ll win the underlying case on its legal merits. The judge ruled the hemp groups’ challenge also failed on that front.

“Petitioners contend that the emergency regulations violate the Administrative Procedures Act (the ‘APA’) and are unconstitutionally vague,” the court wrote. “However, there is a genuine question whether Petitioners will prevail.”

The underlying lawsuit, filed late last month, contends that the rules backed by Gov. Gavin Newsom (D) are based on a faulty declaration of “emergency” and come after officials failed to effectively implement state hemp regulation legislation that was enacted in 2021.

“The Department [of Public Health] had nearly three years since 2021 to address the issues in these Emergency Regulations, which were fully known to the Department and the California Legislature,” the TRO request says. “As recently as a few weeks ago, the California Legislature refused to pass AB 2223…which would have enacted similar provisions.”

“To bypass the legislature, and to reach such issues outside the constraints of the regular rulemaking process, the Department issued the Emergency Regulations,” it continues. “The Department’s inaction over the last three years hardly serves as a sufficient basis for declaring a sudden emergency and circumventing the meticulous procedures of regular rulemaking.”

Jonathan Miller, general counsel for the U.S. Hemp Roundtable, emphasized in a statement Friday that despite the setback, the battle over California’s new hemp regulations will continue.

“While we are disappointed with the court’s decision, this is only the first step in what could be a lengthy process,” he said. “We are currently reviewing all of our options for proceeding. We still hold out hope that Governor 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.”

Other hemp companies have expressed similar disappointment in the ruling.

“Today, a judge sided against common sense and in favor of Gov. Newsom,” said Jim Higdon, founder of Cornbread Hemp and a board member of the U.S. Hemp Roundtable. “The judge’s ruling to deny a temporary restraining order against Newsom’s hemp products ban announces that Californians will lose access to USDA certified organic hemp products in retail stores across the state.”

“At a time when the California cannabis dispensary system is undergoing a credibility crisis due to pesticide contamination,” Higdon added, “the governor has made it much more difficult for Californians to access the only cannabis products that consumers can be certain are free of pesticides.”

First unveiled in early September, Newsom’s new emergency ban won official approval from California’s Office of Administrative Law last week and took effect immediately. The rules, which prompted almost immediate threats of lawsuits, prohibit hemp products with any “detectable amount of total THC.” Hemp products that don’t contain THC are limited to five servings per package and may only be sold to adults 21 and older.

The hemp industry lawsuit says that the ban on products with any detectable amount of THC itself would be catastrophic for businesses. Under current federal law, by contrast, products containing less than 0.3 percent THC are considered hemp and not restricted like high-THC marijuana.

“This draconian regulation alone will essentially devastate an emerging industry that consists largely of small business owners,” it argues. “It’s akin to requiring candy to stop containing sugar…starting tomorrow.”

Meanwhile, states around the country are moving to enact similar cannabinoid restrictions in an effort to limit the proliferation of intoxicating hemp-derived products following the federal 2018 Farm Bill’s legalization of the crop. New Jersey Gov. Phil Murphy (D), for example, signed a bill into law last month putting hemp products under the purview of the state’s cannabis commission, a move that’s also sparked a court challenge.

Miller told Marijuana Moment last month that California’s sheer size, along with its historic role in cannabis reform, means the rules—and the challenge against them—could be especially impactful.

“This is not just about California,” he said. “California is the largest state in our union. It’s the fifth-largest economy in the world. It is where the birth of legal cannabis happened in this country, and so it makes this decision ever more important.”

Newsom, for his part, took an aggressive tone when announcing the new emergency restrictions last month.

Standing next to a table piled with largely unregulated products containing hemp-derived cannabinoids, including beverages and gummies, he expressed disgust that they’re now widely sold at grocery stores, gas stations and convenience stores. Hemp-derived THC-infused sparkling water, he lamented, can be found—including by minors—alongside more benign products like La Croix.

“It’s a disgrace and it’s a shame,” the governor said, flanked my members of law enforcement, “and the industry bears full responsibility for not policing itself, for the proliferation of these intoxicating products that are hurting our children.”

The rules have the support of the California Department of Public Health (CDPH) and marijuana regulators at the Department of Cannabis Control (DCC). They’re also backed by the California Cannabis Industry Association, which represents mostly marijuana businesses, and by an alcohol trade group.

But the Hemp Roundtable isn’t the only organization pushing back on the new rules. Last month, the advocacy group One Hemp said it’s also considering a court challenge “with the intent to hold Newsom accountable to the normal democratic process.”

Jared Stanley, a founding member of One Hemp, said the group’s membership “supported efforts to address bad actors in the hemp industry, but we were shocked that responsible hemp companies were included in this overreach.”

“These companies have long advocated for quality and safety standards backed by science and research,” Stanley said in a statement. “The governor’s decision will harm the good actors in the industry and have dire consequences for families and veterans who depend on these products for their quality of life.”

Another outspoken opponent to the new hemp regulations is Paige Figi, the executive director of the advocacy group Coalition for Access Now. Figi is the mother of Charlotte Figi, who became a crucial figure in the CBD movement after the family successfully treated Charlotte’s Dravet syndrome, a rare form of epilepsy, with CBD oil. Her story is broadly credited as launching the mainstream movement to allow access to CBD.

“Families brought a solution to the legislature and while they were heard, the Governor overrode both the legislature and mothers across California,” Figi said in a statement to Marijuana Moment, referring to failed attempts earlier this year to find consensus on how to regulate hemp-derived cannabinoids.

“In doing so, he may have addressed the issue of intoxicating THC but he has turned the lives of families who depend on non-intoxicating CBD completely upside down,” she continued. “He is not listening and it is causing real harm. Now, these families are left with impossible choices: moving, breaking the law, fighting to change it, or enduring severe suffering, even death.”

Other stakeholders in California, meanwhile—especially those in the state’s regulated marijuana sector—have welcomed Newsom’s emergency regulations, saying they’re a necessary step to rein in an epidemic of unregulated hemp products, many of which produce a chemical high.

The California Cannabis Industry Association (CCIA), for one, has applauded the governor’s proposal, saying after the rules were approved that it “appreciates the state’s ongoing efforts to safeguard public health and better address the rapidly evolving cannabinoid market. We believe these emergency regulations will help support youth prevention efforts and address other safety risks posed by unregulated, intoxicating products.”

Other reformers, such as Dale Gieringer, the director of California NORML, have raised concerns that the rules are impracticable. He’s argued that the strict limit on THC would effectively outlaw even hemp products not intended to be intoxicating.

“This is an overly broad regulation that would harm many medical users who rely on high-CBD extracts to treat childhood epilepsy, cancer and other serious conditions,” Gieringer told Marijuana Moment after the regulations were announced. He added that California NORML has also heard worries from doctors who recommend high-CBD hemp extracts to patients.

The group has pointed out that it’s “virtually impossible to eliminate trace amounts of THC from natural hemp products,” noting that “Even the FDA-approved CBD pharmaceutical Epidiolex contains detectable traces of THC.”

“The governor is quite right to be concerned about the sale of hemp products with intoxicating doses of THC,” Gieringer said. “However, the regulation needs to be relaxed to exempt low-THC, high-CBD medicinal preparations, as other states like Colorado have done.”

Newsom expressed hope at last month’s press conference about working with Assemblymember Cecilia Aguiar-Curry (D), who sponsored the legislative plan to restrict intoxicating hemp products, in the coming legislative session.

“We believe hemp—even hemp with intoxicating components—can be sold,” the governor said, “but they must be sold in a regulated environment, not in grocery stores, not in corner stores all throughout the state of California.”

Aguiar-Curry’s bill, AB 2223, would have done more than just outlaw intoxicating hemp products. As written, it would have folded hemp-derived cannabinoid products into the state’s regulated marijuana system and opened the door to out-of-state hemp producers to sell products into California’s cannabis market.

Products with any detectable amount of THC or other intoxicating cannabinoids would need to be sold through state-licensed cannabis dispensaries under AB 2223. So called “pure CBD” products would not be subject to that rule, but those products could not contain any detectible amount of THC or any other intoxicating cannabinoid.

Newsom said he hoped to partner with Aguiar-Curry next year “to address some of the integration issues” that come with moving intoxicating hemp products under the state’s regulatory system for marijuana.

The advocacy group Origins Council, which says it represents about 800 small and independent cannabis businesses in rural counties throughout the state, was one of the lead advocacy groups pushing back on AB 2223 this session. In comments to Marijuana Moment last month, however, the group applauded Newsom’s emergency proposal to outlaw hemp-derived cannabinoids.

“Legalizing hemp under the 2018 Farm Bill, while maintaining federal prohibition on cannabis, was always going to lead to absurd outcomes,” said Ross Gordon, Origins Council’s policy chair. “Ultimately, the only path forward is to federally legalize cannabis, and to regulate hemp and cannabis at parity from farm to retail.”

“In the meantime,” Gordon added, “addressing these intoxicating hemp loopholes is absolutely necessary, and we applaud Governor Newsom for taking this important step forward.”

Somewhat similar discussions about how to regulate hemp derivatives are playing out at the federal level, as congressional lawmakers consider legislative provisions to impose a general ban on hemp-derived cannabinoids such as delta-8 THC.

Rep. Mary Miller’s (R-IL) amendment to the 2024 Farm Bill, for example, was approved by a House committee in May and would remove cannabinoids that are “synthesized or manufactured outside of the plant” from the federal definition of legal hemp. The change is backed by prohibitionists as well as some marijuana companies, who’ve described the restriction as a fix to a “loophole” that was created under the 2018 Farm Bill that federally legalized hemp and its derivatives.

Anti-drug groups, law enforcement and some health organizations have called on Congress to embrace the ban, arguing that “trying to regulate semi-synthetic cannabinoids will not work.”

In addition to Miller’s amendment in the 2025 Farm Bill, the House Appropriations Committee in July approved a separate spending bill that contains a similar provision to prohibit cannabinoid products such as delta-8 THC and CBD containing any “quantifiable” amount of THC.

Hemp-derived cannabinoids also came up in a recent federal appeals court decision in which judges ruled that cannabinoids derived from hemp, such as THC-O-acetate, indeed qualify as hemp and are legal under the 2018 Farm Bill. In making that ruling, the court rejected the Drug Enforcement Administration’s more restrictive interpretation of the law.

How to address hemp-derived cannabinoids has caused some fractures within the cannabis community, and in some cases marijuana businesses have found themselves on the same side as prohibitionists in pushing a derivatives ban.

In a letter to congressional leaders ahead of Miller’s amendment, the U.S. Cannabis Council (USCC) proposed specific language they wanted to see included that would place hemp-derived cannabinoids containing any amount of THC under the definition of federally illegal marijuana.

While they’ve focused on the need to address public safety concerns related to unregulated “intoxicating” cannabinoid products such as delta-8 THC, some hemp industry advocates say the effect of the proposed language could be a ban on virtually all non-intoxicating CBD products as well, as most on the market contain at least trace levels of THC, consistent with the Farm Bill definition of hemp that allows for up to 0.3 percent THC by dry weight.

Meanwhile, the legislation that advanced through the House Agriculture Committee in May also contains provisions that would reduce regulatory barriers for certain hemp farmers and scale-back a ban on industry participation by people with prior drug felony convictions.

Specifically, it would make it so the U.S. Department of Agriculture (USDA), states and tribal entities could choose to eliminate a policy that prevents people with felony drug convictions in the past 10 years from being licensed to produce industrial hemp.

However, advocates had hoped to see more expansive language, such as what was described in Senate Democrats’ recent summary of their forthcoming Farm Bill draft. Under that plan, there would be a mandate to eliminate the ban, rather than simply authorizing it, and it would cover all hemp producers, not just those growing it for non-extraction purposes.

The Senate Agriculture Committee has not yet released the draft text of their bill, so it remains to be seen if the summary description matches what will ultimately be released. Bipartisan House lawmakers filed standalone legislation last year that would broadly lift the felony ban for would-be hemp producers.

Lawmakers and stakeholders have also been eyeing a number of other proposals that could be incorporated into the Farm Bill—and which could come up as proposed amendments as the proposal moves through the legislative process—including measures to free up hemp businesses to legally market products like CBD as dietary supplements or in the food supply.

Last month Sen. Rand Paul (R-KY) reintroduced a bill that would triple the concentration of THC that hemp could legally contain, while addressing multiple other concerns the industry has expressed about the federal regulations.

Meanwhile in California, Newsom on Monday signed a bill to legalize cannabis cafes in the state—just one day after vetoing a separate proposal to allow small marijuana growers to sell their products directly to consumers at state-organized farmers markets.

He also signed a series of modest reform proposals over the weekend, including a proposal to make it so medical marijuana donated to low-income patients is tax-exempt and another measure to prevent what advocates call the “double taxation” of marijuana by restricting the ability of local governments to calculate their cannabis levies after state taxes are already applied.

While the governor supports cannabis legalization, he’s been notably reserved about various drug policy proposals in recent years, for example vetoing legislation to legalize psychedelics and allow safe consumption sites for illegal drugs, in addition to nixing the farmers market proposal.

Separately, a state-funded effort is underway in California to analyze the genetic information of various marijuana strains in order to preserve the state’s rich history of cannabis cultivation. It’s part of a project meant not only to acknowledge the past but also protect the future of legacy growing regions such as the Emerald Triangle.

Read the judge’s ruling on the motion below:

Is Hemp-Derived CBD A Good Treatment For Marijuana Use Disorder? Researchers Aim To Find Out With New Study Plan

Photo courtesy of Kimzy Nanney.