The Florida Department of Agriculture and Consumer Services (FDACS) conducted an inspection sweep of over 475 businesses in the state that either manufacture or distribute hemp-derived products. As a result of this dragnet, FDACS observed nearly 70,000 packages and products that it deemed to be “illegally targeting children.” This concerted effort, dubbed “Operation Kandy Krush”, focused on hemp operators with products designed to “appeal to children” and was done in an effort to “enforce the law to keep our communities safe.”
Many readers of this blog know that Florida’s recently enacted Senate Bill 1676 (Bill) was a hotly contested piece of legislation in Tallahassee this spring. Brought by Senator Colleen Burton and Representative Will Robinson in early March, the Bill was introduced under the guise of addressing public safety concerns. In an attempt to endear the Bill to the public and gather support, initial drafts immediately sought to “protect the children” by enforcing prohibitions against adding “synthetically derived cannabinoids” into products containing hemp extract. The definition of “synthetically derived cannabinoid” was: “any cannabinoid created by reacting a cannabis- or noncannabis derived extract with solvent or acid to increase the concentration of a present cannabinoid or to create a new cannabinoid not originally found in the extract.”
In addition to prohibiting the use of “synthetically derived cannabinoids”, the Bill also sought to introduce restrictions on the total amount of total tetrahydrocannabinol per dose (0.5mg), as well as the total amount of tetrahydrocannabinol that could be included in a container of a product containing hemp extract (2mg). Fortunately, and due to a unified effort by the Florida hemp industry, these prohibitions were left on the cutting-room floor during the legislative process.
As it evolved this spring, and thanks to efforts by the Florida Healthy Alternatives Association and its lobbying team, the Bill ended without any definition of synthetically derived cannabinoids, and its final version included no prohibitions on adding cannabinoids to products. Additionally, it did it contain restrictions on the amount of THC in a serving or container. The final version of the Bill did contain measures aimed at protecting the public. I wrote about the Florida bill here and here.
The Merriam Webster Dictionary defines “compromise” as “a settlement of differences by arbitration or by consent reached by mutual concessions.” The compromise struck between protective legislators and the Florida hemp-derived products industry included prohibitions against making products containing hemp extract “attractive to children”. As defined in the Bill, “attractive to children” means: “manufactured in the shape of humans, cartoons, or animals; manufactured in a form that bears any reasonable resemblance to an existing candy product that is familiar to the public as a widely distributed, branded food product such that a product could be mistaken for the branded product, especially by children; or containing color additives.”
I personally testified before the Florida legislature four times as the Bill worked its way through both Chambers. And while many industry leaders, stakeholders, and participants agreed about wanting to protect the health, safety, and well-being of their communities, they did not want their operations (or the products they produce) to be regulated out of existence. As a result, the language prohibiting manufacturing products containing hemp extract that could be “attractive to children” was kept. The industry believed that it was responsible and appropriate to address public safety concerns related to children, and it also agreed to sell products intended for human ingestion or inhalation only to persons over the age of twenty-one, as well as in child-resistant packaging.
The hemp-derived products industry in Florida also agreed to the fact that products containing hemp extract distributed or sold in violation of the Bill, and more importantly, any products found to be attractive to children, were subject to an immediate stop-sale order, which brings us to FDACS recent enforcement actions.
The compromise between the legislators and the hemp-derived products industry was clear when the Bill was passed, clear when it was approved by Governor DeSantis in late June, and remained clear when it went into effect on July 1, 2023. What is unclear is why companies would continue to offer or manufacture products that were in violation of the Bill.
If “Operation Kandy Krush” is any indication of FDACS’ intention and/or ability to enforce the prohibitions set forth by the Bill, industry participants in Florida can expect more surprise visits from FDACS inspectors. As a firm speaking with first-hand experience in dealing with the fallout from “Operation Kandy Krush”, it is safe to say that FDACS is going to work unremittingly to enforce the prohibitions against making products that are “attractive to children”. For this reason, we recommend that any manufacturer, distributor, or retailer of these products take measures to ensure that they are not “attractive to children” as failure to do so could result in the undesirable outcome of having FDACS put their products under a stop-sale order.
For more information on how Kight Law can help you remain compliant in the face of ever-changing regulations, contact us to set up a consultation.
July 26, 2023
This article was written by attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation please click here and mention this article.