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HomeMy WebLinkAboutAGENDA REPORT 2020 0102 CC SPC ITEM 05ACITY OF MOORPARK, 
CALIFORNIA City Council Meeting of January 02, 2020 ACTION Approved staff recommendation. BY B.Garza. A. Consider 10-Day Report Pursuant to Government Code Section 65858(d) on the Measures Taken to Alleviate the Conditions which led to the City Council’s Adoption on December 18, 2019 of Interim Urgency Ordinance No. 477 that Established the Current Moratorium on Certain Industrial Hemp Uses. Staff Recommendation: Adopt the 10-Day Report regarding Interim Urgency Ordinance No. 477 that imposed a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp. (Staff: Troy Brown) Item: 5.A. Item: 5.A. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Troy Brown, City Manager Kevin G. Ennis, City Attorney Nicholas R. Ghirelli, Assistant City Attorney D ATE: 01/02/2020 Special Meeting SUBJECT: Consider 10-Day Report Pursuant to Government Code Section 65858(d) on the Measures Taken to Alleviate the Conditions which led to the City Council’s Adoption on December 18, 2019 of Interim Urgency Ordinance No. 477 that Established the Current Moratorium on Certain Industrial Hemp Uses BACKGROUND/DISCUSSION On December 18, 2019, pursuant to Government Code Section 65858, the Moorpark City Council enacted a 45 day Interim Urgency Ordinance to impose a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp. The City Council directed staff to schedule and notice a public hearing for January 15, 2020, to consider extending the Interim Urgency Ordinance for an additional 10 months and 15 days (through December 16, 2020). Absent any additional action, the Interim Urgency Ordinance would expire after 45 days (February 1, 2020). Staff anticipates additional time will be necessary to thoroughly research and evaluate a permanent, non-urgency ordinance establishing zoning regulations and other restrictions on the cultivation, manufacturing, testing, sale, and storing of industrial hemp. City staff also anticipates that additional time will be necessary to study the sale of CBD products and of the operation of stores that specialize in the sale of hemp products. Government Code Section 66858 (d) states: “Ten days prior to the expiration of that interim ordinance or any extension, the legislative body shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance.” This “10-day” report must be issued by January 5, 2020, which is why the Special meeting has been called for January 2, 2020. 1 Honorable City Council 01/02/2020 Page 2 The attached draft report describes the measures taken to alleviate the condition which led to the adoption of the Interim Urgency Ordinance on industrial hemp uses and what steps staff is taking to develop new permanent regulations of industrial hemp. FISCAL IMPACT None. COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. STAFF RECOMMENDATION Adopt the 10-Day Report regarding Interim Urgency Ordinance No. 477 that imposed a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp. Attachment: 10-Day Report Regarding Moratorium on Industrial Hemp Uses 2 REPORT ON THE MEASURES TAKEN TO ALLEVIATE THE CONDITIONS WHICH LED THE CITY OF MOORPARK TO ENACT INTERIM URGENCY ORDINANCE NO. 477 ON DECEMBER 18, 2019 TO IMPOSE A MORATORIUM ON THE CULTIVATION, MANUFACTURING, TESTING, STORING, AND CERTAIN RETAIL SALES OF INDUSTRIAL HEMP ISSUED BY THE CITY COUNCIL OF THE CITY OF MOORPARK ON JANUARY 2, 2020 PURSUANT TO GOVERNMENT CODE SECTION 65858(d) Background: On December 18, 2019, pursuant to Government Code Section 65858, the Moorpark City Council enacted an Interim Urgency Ordinance to impose a moratorium on the cultivation, manufacturing, testing, storing, and certain retail sales of industrial hemp. Absent any additional action, the Interim Urgency Ordinance will expire after 45 days (February 1, 2020). However, staff anticipates additional time will be necessary to thoroughly research and evaluate a permanent, non-urgency ordinance establishing zoning regulations and other restrictions on the cultivation, manufacturing, testing, sale, and storing of industrial hemp. City staff has therefore scheduled and will notice a public hearing for January 15, 2020, to extend the Interim Urgency Ordinance from February 1, 2020 for an additional 10 months and 15 days, through and including December 16, 2020. Reasons for 45-Day Interim Ordinance and Its Extension: The 45-Day Interim Ordinance was adopted for the following reasons: A. Cultivation, Manufacturing, Testing and Storing of Industrial Hemp. Over the last several months, large numbers of residents in the Peach Hill, Mountain Meadows, Serenata and other areas and neighborhoods in the southern portion of the City have experienced offensive odors from relatively new and large-scale outdoor industrial hemp farms located in the Tierra Rejada Valley located immediately south of the City in the unincorporated area of the County of Ventura. Dozens of residents have called City and County officials complaining of the continual skunk-like odor in their neighborhoods as terpenes from a large farm of industrial hemp grown to produce CBD oil wafts into residential neighborhoods adjacent to this hemp farm. Aside from having to experience offensive odors, many of these residents also have complained of headaches, nausea, sore throats and other physical side effects from breathing and smelling the distinctive odor generated by industrial hemp grown to produce CBD oil. Additional concerns were raised about the volatile organic compounds (VOC) generated by industrial hemp plants and whether large-scale production of industrial hemp could lead to the increased generation of smog-producing ozone in Ventura County. ATTACHMENT 3 Ten-Day Report - Ordinance No. 477 Page 2 Public safety concerns were also raised. Ventura County Sheriff’s Captain and Moorpark Chief of Police Victor Fazio, reported on the increased number of crimes committed by persons seeking to steal industrial hemp plants from open and unsecured fields, the collateral crimes committed in the course of those thefts, and the criminal element that is being attracted into Ventura County to take advantage of these opportunities for theft. B. CBD Products After the 2018 Farm Bill was signed into law, the Food and Drug Administration (“FDA”) released a statement stating that it is unlawful under the Food, Drug, and Cosmetics Act (“FD&C”) to introduce food containing added CBD into interstate commerce, or to market CBD products as, or in, dietary supplements, regardless of whether the CBD was derived from industrial hemp or from cannabis. Similarly, the California Department of Public Health released a statement explaining that the use of industrial hemp as the source of CBD to be added to food products is prohibited. The California Department of Public Health explained that until the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food or California makes a determination that they are safe to use for human and animal consumption, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. The FDA has approved only one CBD product, Epidiolex, a prescription drug product to treat two rare, severe forms of epilepsy. The moratorium will not ban the sale of Epidiolex. Under the FD&C, any product intended to have a therapeutic or medical use, and any product (other than a food) that is intended to affect the structure or function of the body of humans or animals, is a drug. Drugs must generally either receive premarket approval by the FDA through the New Drug Application process or conform to a "monograph" for a particular drug category, as established by FDA's Over-the-Counter (“OTC”) Drug Review. CBD is not an ingredient considered under the OTC drug review. An unapproved new drug cannot be distributed or sold in interstate commerce. There are no FDA approved products that contain CBD other than Epidiolex. Therefore, the sale of CBD products that are intended to have a therapeutic or medical use is a violation of federal law, and as discussed below, can pose a significant risk to the public. In addition, the FDA has concluded that CBD cannot be sold as a dietary supplement. The FDA has also concluded that it is a prohibited act to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which CBD has been added.1 Unlike the FDA-approved CBD drug product, unapproved CBD products, which could include unapproved drugs, cosmetics, foods, and products marketed as dietary supplements, have not been subject to FDA evaluation regarding whether they are effective to treat a particular disease or have other effects that may be 1 Ingredients that are derived from industrial hemp that do not contain THC or CBD might be able to be added to food. In December 2018, the FDA determined that hulled hemp seed, hemp seed protein powder, and hemp seed oil can be legally marketed in human foods for consumption as marketers do not make claims that they treat disease. These products do not fall within the City’s categorical ban. 4 Ten-Day Report - Ordinance No. 477 Page 3 claimed. In addition, they have not been evaluated by the FDA to determine what the proper dosage is, how they could interact with other drugs or foods, or whether they have dangerous side effects or other safety concerns. Misleading, unproven, or false claims associated with CBD products may lead consumers to put off getting important medical care, such as proper diagnosis, treatment, and supportive care, which is a real public health and safety concern. The FDA notes that it has seen only limited data about CBD safety and the data points to real risks that need to be considered before taking CBD for any reason. According to the FDA, CBD has the potential to cause liver injury, and can affect the metabolism of other drugs, causing serious side effects. Use of CBD with alcohol or other Central Nervous System depressants increases the risk of sedation and drowsiness, which can lead to injuries. CBD can also cause changes in alertness, most commonly experienced as drowsiness or sleepiness, gastrointestinal distress, most commonly experienced as diarrhea and/or decreased appetite, and changes in mood, most commonly experienced as irritability and agitation. In addition to safety risks and unproven claims, the quality of many CBD products may also be in question. The FDA has raised concerns about the lack of appropriate processing controls and practices that can put consumers at additional risk. For example, the FDA has tested the chemical content of cannabinoid compounds in some of the products, and many were found to not contain the levels of CBD they claimed. The FDA is also investigating reports of CBD potentially containing unsafe levels of contaminants (e.g., pesticides, heavy metals, and THC). A cosmetic is defined in Section 201(i) of the FD&C Act as "(1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap." Under the FD&C Act, cosmetic products and ingredients are not subject to premarket approval by FDA, except for most color additives. Ingredients not specifically addressed by regulation must nonetheless comply with all applicable requirements, and no ingredient – including a cannabis or cannabis-derived ingredient – can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way. A cosmetic generally is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling, or under such conditions of use as are customary or usage. If a product is intended to affect the structure or function of the body, or to diagnose, cure, mitigate, treat or prevent disease, it is a drug, or possibly both a cosmetic and a drug, even if it affects the appearance. As part of staff’s comprehensive investigation of industrial hemp and its potential impacts on public health, safety, and welfare, staff will also evaluate whether and to what extent retail sales of CBD products contribute to any such health and safety impacts. 5 Ten-Day Report - Ordinance No. 477 Page 4 C. Hemp Retail Stores Other cities in Ventura County have also seen an increase in stores specializing in the sale of hemp products, such as CBD. In order to comprehensively review the appropriateness of this type of focused retail store to be located in the City and in certain types of commercial districts of the City, the City wants to consider a range of zoning and other regulatory options that may pertain to these types of retail stores. The City also wants to study a potential exemption for certain types of hemp products from the definition of what would constitute a non-permissible hemp store. Based on these and other concerns expressed by the public and described in the staff report for the December 18, 2019, City Council meeting, the City Council adopted Ordinance No. 477 to impose a moratorium on: (1) the cultivation, manufacturing, testing and storing of industrial hemp in the City; (2) the retail sale of unapproved CBD products; and (3) the establishment of hemp stores in the City. Measures Taken to Alleviate the Conditions Which Led to the Adoption of the Ordinance: •The County of Ventura has proposed an interim ordinance to create a one- half mile buffer between sensitive receptors and industrial hemp cultivation activities carried out in unincorporated County land. The County’s proposed interim Ordinance will be considered at an upcoming Board meeting on January 14, 2020. The City has submitted a letter asking that the County develop a science-based standard for separation between residences and other sensitive uses sues and hemp cultivation areas. The City is concerned that with wind patterns, both on-shore and off-shore flows, the separation needed to ensure that residents are not subjected to objectionable odors may need to be greater than one-half mile. City staff intends to attend the upcoming County Board meeting and provide input into the Board’s decision. •City staff has been conferring with the Ventura County Sheriff’s Department in order to better understand the causes of additional criminal activity surrounding industrial hemp activities and what type of security measures are needed to avoid hemp farms from being a magnet for criminal theft of hemp plants. •City staff has been monitoring and researching the current regulatory environment surrounding CBD products that have not yet been approved for human consumption by the Federal Drug Administration. Staff is undertaking this research to determine whether, in the absence of a robust and well- understood federal regulatory program, municipal permanent restrictions on CBD productions are appropriate. •City staff has begun researching permanent amendments to the Municipal Code to codify the moratorium’s prohibitions on industrial hemp activities, 6 Ten-Day Report - Ordinance No. 477 Page 5 including prohibitions on the cultivation, manufacturing, testing and storing or industrial hemp in the City. •City staff is also researching whether the Interim Ordinance ban on what are effectively hemp stores (retail stores with at least five percent of its floor area or five percent of its gross sales from hemp projects) is needed to protect the community from the unregulated sale of hemp products. Staff will be evaluating the percentage threshold for the ban and also whether additional exemptions for certain hemp products are appropriate. •Assuming the City Council elects to extend the Interim Urgency Ordinance, and thereafter, amendments to the Moorpark Municipal Code were to be approved by the City Council, staff would at that time recommend rescinding the Interim Urgency Ordinance upon the effective date of the new regulations prior to December 16, 2020. 7