CDFA’s OCal Program: Proposed Regulations and Public Comment Period

CalCannabis Cultivation Licensing, a division of the California Department of Food and Agriculture (CDFA), has released proposed regulations for the OCal Program. OCal is the proposed  statewide “organic” certification program for cannabis and cannabis products.  

Once in effect, the OCal Program will ensure that cannabis and non-manufactured cannabis products bearing the OCal seal have been certified as consistent with predefined standards that are comparable to the National Organic Program. The OCal program will remain the sole determiner of organic designation and certification for cannabis until the National Organic Program permits organic designation and certification for cannabis.

The Need for a Statewide Organic Certification Program For Cannabis

USDA’s National Organic Program, created by Congress in 2001, developed uniform national standards for organically-produced agricultural products sold in the United States. Unfortunately, because cannabis is still a  Schedule I drug under the Controlled Substances Act, cannabis is not eligible for federal organic designation and certification by the USDA.

Similar to the National Organic Program which operates as a public-private partnership, the proposed OCal program will  accredit private companies and help train inspectors to certify cannabis that meets organic standards. CDFA also envisions working with accredited certifiers to enforce the OCal standards, which will establish consumer confidence in the integrity of the OCal certification and seal.

MAUCRSA Requires Program for Certification of Organic Cannabis

In 2017, the passage of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) added Section 26062 and 26062.5 to the California Business and Professions Code, which read:

26062. (a)(1) No later than January 1, 2021, the Department of Food and Agriculture shall establish a program for cannabis that is comparable to the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)), and the California Organic Food and Farming Act (Chapter 10 (commencing with Section 46000) of Division 17 of the Food and Agricultural Code) and Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code. The Department of Food and Agriculture shall be the sole determiner of designation and certification.

(b) If at any time preceding or following the establishment of a program by the Department of Food and Agriculture pursuant to subdivision (a), the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)) authorizes organic designation and certification for cannabis, this section shall become inoperative and, as of January 1, of the following year, is repealed.

26062.5. A person shall not represent, sell, or offer for sale any cannabis or cannabis product as organic except in accordance with the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)), if applicable. A person shall not represent, sell, or offer for sale any cannabis or cannabis product with the designation or certification established by the Department of Food and Agriculture pursuant to subdivision (a) of Section 26062 except in accordance with that subdivision.

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As a consequence, existing law now requires the CDFA to establish a program for organic certification for cannabis comparable to the National Organic Program and the California Organic Food and Farming Act by January 1, 2021. The Business and Professions Code also requires the department to be the sole determiner of organic designation and certification. If the National Organic Program authorizes organic designation and certification for cannabis, then the CDFA’s authority would become inoperative and would be repealed. 

Business and Professions Code Section 26062.5 also prohibits individuals from representing, selling, or offering for sale any cannabis or cannabis products as organic or with the designation or certification established by the CDFA, except as provided in the OCal Program regulations. 

Assembly Bill 97 Requires Organic Designation for Manufactured Cannabis Products

In 2019, the passage of Assembly Bill 97 (AB 97) removed the requirement for the CDFA to be the sole determiner of designation and certification. Like MAUCRSA, the AB 97 amended the Business and Professions Code, requiring the California Department of Public Health (CDPH) to establish a comparable organic certification program for manufactured cannabis goods by July 1, 2021.

26062. (a) (2) No later than July 1, 2021, the State Department of Public Health shall establish a certification program for manufactured cannabis products that is comparable to the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990 (7 U.S.C. Sec. 6501 et seq.)), the California Organic Food and Farming Act (Chapter 10 (commencing with Section 46000) of Division 17 of the Food and Agricultural Code), and Article 7 (commencing with Section 110810) of Chapter 5 of Part 5 of Division 104 of the Health and Safety Code. For purposes of administrating this section, the State Department of Public Health shall be exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).

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What the Proposed Regulations For The OCal Program Entail

The OCal program regulations proposed by the California Department of Food and Agriculture will, among other things:

  1. Establish the OCal Program: an “organic” certification program for California cannabis;
  2. Establish an OCal Program seal and designation (OCal);
  3. Set minimum standards for the production of cannabis intended to be sold, labeled, or represented as organic under the program, that are comparable to the National Organic Program and the California Organic Food and Farming Act; and
  4. Establish labeling and marketing standards for the use of the OCal program’s seal and designation.

Public Comment Period on OCal Program Regulations

The release of the CDFA’s proposed regulations marks the official start of the public comment period provided under California law. You can submit comments about the proposed regulations for the OCal Program by Tuesday, July 7, 2020.

Comments on the proposed regulations may be submitted via email to CDFA.CalCannabis_OCal@cdfa.ca.gov or by mail to:

California Department of Food and Agriculture
Attention: Kristi Armstrong
CalCannabis Cultivation Licensing Division
Proposed OCal Regulations
P.O. Box 942871
Sacramento, CA 94271

For tips from the California Department of Food and Agriculture on how to make effective comments about the proposed OCal regulations, please see How to Submit Your Comments.

An Opportunity For Cannabis Businesses

The regulators highlight many benefits of creating a State level “organic” certification program for cannabis and non manufactured cannabis products, including consumer protection and environmental benefits such as,

  1. Public and Consumer Benefits
    The OCal Program will assure consumers that non manufactured OCal cannabis and cannabis products are uniformly certified to State standards by an accredited, OCal-registered certifying agent. The OCal seal protects consumers from fraud and provides a means for product differentiation. 
  1. Environmental Benefits 
    A well-managed organic farming system: 
    • Creates healthy soils with the potential for increased carbon sequestration and available water capacity;
    • Reduces fossil fuel needs associated with external nitrogen fertilizer inputs; and 
    • Reduces waste by recycling excess or deficient nutrients and container growing media.

In addition to the anticipated consumer and environmental benefits envisioned by the legislators and regulators listed above, “organic” certification under the OCal Program will give cannabis businesses in California the opportunity to differentiate themselves from their competitors. By highlighting the “organic” certification and seal in their branding, labeling and packaging, cannabis cultivators will be able to stand out and command higher prices for their products. 
If you have any questions about the proposed regulations or would like to start preparing for certification, please reach out to the cannabis permitting and licensing attorneys at Rogoway Law Group.

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