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San Francisco brewery’s run-in with the feds raises new questions about CBD in the age of legalization

Tim Nelson
May 25, 2018

When California voters decided to fully legalize recreational marijuana use in November of 2016, Black Hammer Brewing figured that brewing a beer with cannabidiol (aka CBD) would be a-OK. But a recent federal order has shut down their production, drawing attention to the unclear status of marijuana’s chief non-psychoactive component.

For Black Hammer, the story of CBD beer starts— naturally— on 4/20. On the 2017 edition of the unofficial stoner’s holiday, the Bay Area brewery released Toke Back Mountain, an IPA infused with cannabidiol and terpines, an organic compound that imbues the beer with a pot flavor familiar to anyone who’s hung out in Haight-Ashbury. The beer’s success inspired Black Hammer to release seven more CBD brews over the following year, until an order from the Alcohol and Tobacco Tax and Trade Bureau (TTB) forbade further production of anything brewed with CBD.

So what’s the deal? It turns out this specific decree wasn’t driven by the legal status (or lack thereof) of CBD, but esoteric regulations pertaining to the use of certain ingredients in beer. As it turns out, hemp, from which most CBD is derived, does not qualify as a “traditional” beer ingredient. Brewing with hemp (and plenty of more benign but rare additives like starfruit) requires special approval from the TTB.

In this case, that approval process is set to collide with how hemp is regulated. Despite the fact that many users tout cannabidiol’s ability to treat pain, anxiety, and even seizures without any sort of high, cannabidiol and the domestic hemp it’s derived from remain illegal at the federal level. While imported hemp is permitted for industrial use, the domestic crop is classified as a Schedule I controlled substance and treated the same as any other form of cannabis. Still, that hasn’t stopped the occasional sale of CBD-laced foods in states like New York, where proprietors gamble that an increasingly lax attitude towards weed prosecution will make going after CBD sellers more trouble than it’s worth.

Domestic hemp cultivation and CBD use is permitted in states that have legalized recreational marijuana, but there aren’t many hard and fast rules pertaining to where one can buy CBD outside the confines of a dispensary. Rumors of 7-Eleven gearing up to stock CBD products in states where marijuana is legal would’ve proven to be a watershed moment for mainstream hemp acceptance, but it seems to have been a case of fake news. And of course, the whole recreational marijuana program could collapse as soon as embattled Attorney General Jeff Sessions makes good on his longtime threat to undo state-level progress.

Surprisingly enough, the issue could be resolved by hemp advocate and Senate Majority Leader Mitch McConnell. He's fast-tracking the Hemp Farming Act of 2018, a bill that would undo hemp’s Schedule I status and remove the roadblocks limiting its cultivation. Of course, the bill could cause further confusion over how DEA policies around the substance would be enforced in this changed context.

All of that has left Black Hammer owner Jim Furman feeling unsure of when— or even if— he’ll get the all-clear to brew with CBD again. “We believe that future approval of our formula may be dependent on hemp reclassification by the federal government/DEA,” Furman told the San Francisco Chronicle, adding that “our line of CBD beers has been our most popular line.”

For now, Black Hammer can serve their existing supply of Toke Back Mountain, Hippie Hill, and all of their other CBD-infused beers in their SoMA taproom. But what happens after the last keg is kicked is in the hands of the Feds. And in this case, there’s a good chance that more than just a few bearded craft beer snobs will be eager to find out what happens. 

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