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How to Make the Best Quiche

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Creamy and custard-like with a thick filling, The Best Quiche starts with the most basic recipe and has endless options for adding meat, vegetables, and herbs. This delicious recipe is a staple and perfect for breakfast, lunch, or dinner.

Try this delicious Ham and Cheese Quiche or this Easy Ham and Broccoli Quiche for additional options.

quiche with slices cut out in white pie dish

The Best Quiche

With a creamy custard-like filling filled with the most delicious ingredient combinations quiche has always been one of my favorite recipes to make. The flavor combinations are endless and this dish makes a perfect meal for any time of day. Personally, I love making one for lunch and dividing it up in meal prep containers for the week.

quiche slice on white plate

How to Make Quiche?

  1. Prepare Pie Crust – you can use a store-bought pie crust or you can prepare your own using this Creamy and custard-like with a thick filling, The Best Quiche starts with the most basic recipe and has endless options for adding meat, vegetables, and herbs. This delicious recipe is a staple and perfect for breakfast, lunch, or dinner. recipe.
  2. Prepare Additional Ingredients – if you’re using meat make sure to brown it in a skillet using oil or if using vegetables saute them in oil before mixing into the filling.
  3. Whisk Egg Mixture – in a large bowl combine the eggs, cream, milk, and any additional seasonings or herbs.
  4. Bake – pour the egg mixture into the pie crust and bake for about 45 to 55 minutes or until the center is set.

ingrdients for baking

Quiche Recipe Ingredients

  1. Pie Crust: Use a homemade pie crust to achieve a homemade quiche full of flavor, however, a store-bought version will work too.
  2. Eggs: The eggs are the base of the recipe that holds it all together and adds to the custard-like taste.
  3. Heavy Cream: The heavy cream creates a thick filling that adds creaminess to the dish and balances the milk out.
  4. Milk: To create and quiche that is slightly dense, but still fluffy use some heavy cream and some milk. I prefer using whole milk versus a lighter skim version.
  5. Herbs and Seasoning: The most basic quiche can have only salt and pepper if you desire, however, adding fresh herbs and spices will elevate the flavor and make it richer in taste.

What to Add-in:

  • Cheese: cheddar, mozzarella, feta, gouda, or any kind of cheese blend makes for an extra creamy and cheesy quiche.
  • Vegetables: diced onion, chopped peppers, zucchini, spinach, mushrooms, asparagus, leeks, are all great add-ins. Make sure to saute the vegetables in oil first before stirring into the filling mixture.
  • Meat: crumbled bacon, diced ham, ground sausage are all delicious options. Cook them first before adding them into the filling.

Additional Recipes:

You can get creative with your ingredient combinations from making a vegetable quiche, to a meat-lovers version. Below are some popular options

  • Mushroom, Onion, Swiss Cheese and Mozzarella
  • Ham, Cheddar Cheese, and Chives
  • Red Bell Pepper, Onion, Mozzarella Cheese, and Broccoli

quiche in white pie dish

Can the Crust Be Store-Bought?

Yes. You can easily use a store-bought crust for your quiche however, homemade is always best and this Perfect Pie Crust is easy to make.

How to Make it Crustless

To make a crustless quiche you can easily slice some potatoes very thin to line the bottom of your pie dish or you can just pour your ingredients into a well-greased dish.

quiche with slices cut out in white pie dish

The Best Quiche

Prep Time 10 minutes

Cook Time 55 minutes

Resting Time 15 minutes

Total Time 1 hour 20 minutes

Author Aimee Mars

Servings 10 Slices

Creamy and custard-like with a thick filling, The Best Quiche starts with the most basic recipe and has endless options for adding meat, vegetables, and herbs. This delicious recipe is a staple and perfect for breakfast, lunch, or dinner.

  • 1 Pie Crust homemade or store-bought
  • 6 large Eggs
  • 2 cups Heavy Cream
  • 1 cup Whole Milk
  • teaspoons Salt
  • 1 teaspoon Ground Pepper

Nutrition Facts

The Best Quiche

Amount Per Serving (1 slice)

Calories 306 Calories from Fat 234

% Daily Value*

Fat 26g40%

Saturated Fat 14g70%

Cholesterol 194mg65%

Sodium 495mg21%

Potassium 131mg4%

Carbohydrates 11g4%

Fiber 1g4%

Sugar 1g1%

Protein 7g14%

Vitamin A 923IU18%

Vitamin C 1mg1%

Calcium 81mg8%

Iron 1mg6%

* Percent Daily Values are based on a 2000 calorie diet.

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The Best Breakfast Casserole | The Recipe Critic

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The Best Breakfast Casserole is a thick and creamy egg base with shredded potatoes, chunks of ham and flavorful cheese blends that bakes up in no time. Make ahead or enjoy the morning of during the holidays!

Breakfast for the holidays is a favorite for us! If you love breakfast casseroles as much as I do try this Slow Cooker Breakfast Casserole, Overnight Breakfast Casserole or Overnight Cinnamon Apple French Toast Casserole.

breakfast casserole in a dish baked

Breakfast Casserole

A delicious and hearty breakfast casserole that is the BEST that you will make!

When I tell you that this is the BEST breakfast casserole it is no joke.

I have made a few breakfast casseroles in my day and this one became an instant favorite!

I especially love this casserole because it is so hearty and full of wonderful breakfast goodness.

It is a classic breakfast casserole with amazing flavor.

It has hash browns packed right inside which is my favorite part.

Simple ingredients for a simple egg base that is exploding with flavor.

Your family will love this easy breakfast casserole this holiday season.

It is perfect for baking ahead of time or making it the morning of.

This breakfast casserole is sure to please your entire family this holiday season!

What you need to make a breakfast casserole

This breakfast is perfect any time of the year but great for Christmas!

Simple and easy recipe that bakes up perfectly and can feed a crowd.

All the right ingredients that are simple and comes together quickly.

It is packed and loaded with all the favors you will love.

You take everything out the night before and throw it in the oven in the morning.

It can feed a lot of people which is awesome.

I have our traditional Sticky buns on the menu for Christmas along with this amazing casserole.

When I made it last week for my hubby, we couldn’t seem to get enough of it!

Luckily it makes a big casserole and is enough to feed a small army!

Try it out for yourself!  You will agree that it is amazing!

  • Shredded potatoes: frozen and they do not need to be thawed.
  • Salt and pepper: to taste
  • Eggs: whisked together
  • Half and half: adds creamy texture and thickness.
  • Season salt: more flavoring
  • Cheddar cheese: grated
  • Pepper jack cheese: grated
  • Ham: chopped to your liking. I prefer thicker pieces but go as little as you would like.

process photos of steps being taken to make breakfast casserole

How to make a breakfast casserole

This breakfast casserole is the BEST for so many reasons.

One of which, is how simple this breakfast casserole recipe comes together quickly and is in the oven in minutes.

There is not a lot of planning and prepping for this breakfast casserole recipe.

It makes it simple and easy to throw together and place in the oven to bake.

Make this ahead of time and when ready to bake simply take out of the refrigerator and bake.

This tried and true breakfast casserole is so simple and everyone loves the blended flavoring.

Try the BEST breakfast casserole with your family this holiday season!

  • Prepare pan and add ingredients: Grease a 9×13 inch pan. Add the frozen and shredded potatoes to the bottom of the pan. Sprinkle with salt and pepper.
  • Whisk eggs: In a large bowl, whisk the eggs together.
  • Add remaining ingredients: Then add half and half, season salt, cheddar cheese, pepper jack, and chopped ham.
  • Pour into pan and refrigerate: Pour over the top of the frozen potatoes. Cover with foil and refrigerate for 2 hours or overnight.
  • Bake your breakfast casserole: Bake covered in foil at 350 degrees for 90 minutes. Let rest for 10 minutes before serving.

What to serve with a breakfast casserole

Make this a complete meal by adding a little extra on the side.

This breakfast casserole recipe has all the greatness inside it and can be a great breakfast all by itself.

If you are looking for a more complete meal, add sides that will make this breakfast casserole recipe more complete.

With these extra sides, this breakfast casserole will be one amazing meal all together.

Here are some ideas of what can go along with this breakfast casserole recipe during the holiday season.

breakfast casserole baked in a pan

Variations of breakfast casserole

There are so many fun things to add into the breakfast casserole to make it even more better and flavorful.

Switch ingredients around or add in new ones that you prefer for your family.

This breakfast casserole recipe continues to get better and better. That is why it is the BEST!

There are so many options with this breakfast casserole recipe that it makes it so fun to make often.

Make this Tater Tot Breakfast Casserole by substituting the frozen hash browns for a layer of frozen tater tots.

Adding and substituting ingredients makes this breakfast casserole better every time you make it.

Try some of these fun variations in this breakfast casserole and find what you enjoy best!

  • Vegetables: bell peppers, spinach or kale, tomato (fresh or canned), broccoli, mushrooms or onions are great add ins.
  • Meat: bacon, variations of sausage, shredded chicken, ground beef or left over turkey.
  • Cream: not a fan of half and half, you can use whipping cream for a thicker, richer breakfast casserole or simply use milk that you have on hand.
  • Cheese: Swiss cheese, Colby jack or mozzarella work well and melt perfectly in this breakfast casserole.
  • Spicy: red pepper flakes, green chilies or green onions are fun way to add a little heat to your breakfast casserole recipe.
  • Potatoes: rather than shredded potatoes, diced or flavorful frozen potatoes will work great in this breakfast casserole.

Tips for making the breakfast casserole

Here are some tips for making this breakfast casserole even better and easier on you.

This recipe is fun to make different variations, make ahead or even the morning of.

There are so many great things that make this breakfast casserole the BEST!

These tips will help you better understand how to bake this breakfast casserole for you to enjoy with your family.

  • Covering the breakfast casserole: Make sure to cover your breakfast casserole when baking. With 10 to 15 minutes remaining, cook uncovered if you prefer for that crisp crust on top.
  • Keep your potatoes frozen: No, there is no need to thaw the potatoes. They will cook frozen.
  • How to know when the best breakfast casserole is done: once the outside edges become golden brown and the egg mixture in the middle is firm ( check by rocking the pan). Use a toothpick or knife to check if it is completely cooked through. You can also use a thermometer to check to see if the breakfast casserole has reached 165 degrees Fahrenheit.
  • Drain grease: if you are using any other meat in the breakfast casserole, be sure to drain the meat prior to adding it in the breakfast casserole dish.
  • Gluten free: make this gluten free by keeping with this breakfast casserole recipe. Check your labels on other ingredients to make sure.

A slice of breakfast casserole.

Storing the best breakfast casserole

Make this ahead of time the night before or morning of, this breakfast casserole recipe is sure to please!

It makes it perfect for storing for the busy Christmas morning breakfast or weekend breakfast that you want to sleep in and wake up to it baking.

This is just another reason why this breakfast casserole recipe is the BEST or the BEST!

So many options and plans for this breakfast casserole to make your holiday mornings even easier and better.

  • Making the best breakfast casserole ahead: Simply follow the instructions until you are ready to bake. Cover with aluminum foil or lid and place in your refrigerator. When you are ready to bake, simply take it out of the refrigerator and bake it according to the instructions. This will sit in the refrigerator for up to 2 days.
  • Can you freeze breakfast casserole? Yes, this is perfect for freezing. Make and bake your breakfast casserole. Once it has completely cooled down, place in an airtight container or ziplock bag. Lay flat in your freezer for up to 1 month. When ready to warm up, place on baking sheet frozen and bake until warmed through about 20 to 25 minutes.
  • Warming up breakfast casserole: To reheat breakfast casserole add it to the microwave or covered in the oven. Checking it occasionally until it has been warmed through.

More delicious breakfast recipes

A slice of breakfast casserole on a plate.

The Best Breakfast Casserole

Prep Time 5 minutes

Cook Time 1 hour 30 minutes

Total Time 1 hour 35 minutes

Author Alyssa Rivers

Servings 12 people

The Best Breakfast Casserole is a thick and creamy egg base with shredded potatoes, chunks of ham and flavorful cheese blends that bakes up in no time. Make ahead or enjoy the morning of during the holidays!

  • 24 ounces frozen shredded potatoes
  • salt and pepper
  • 12 eggs
  • 2 cup half and half
  • 1 teaspoon season salt
  • 1 1/2 cup cheddar cheese grated
  • 1 1/2 cup pepper jack cheese grated
  • 2 cup chopped ham Or your preferred meat, sausage would also be great

Updated on December 7, 2019

Original Post on December 22, 2014

Nutrition Facts

The Best Breakfast Casserole

Amount Per Serving

Calories 225 Calories from Fat 162

% Daily Value*

Fat 18g28%

Saturated Fat 10g50%

Cholesterol 206mg69%

Sodium 436mg18%

Potassium 138mg4%

Carbohydrates 2g1%

Sugar 1g1%

Protein 14g28%

Vitamin A 630IU13%

Vitamin C 0.3mg0%

Calcium 274mg27%

Iron 1mg6%

* Percent Daily Values are based on a 2000 calorie diet.

Breakfast casserole baked in a casserole dish.

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Awesome Bacon Wrapped Brussels Sprouts

Awesome Bacon Wrapped Brussels Sprouts are beautifully wrapped Brussel sprouts in strips of bacon then brushed with a maple, brown sugar glaze and baked until golden brown. This is one MUST make appetizer this holiday season!

Who doesn’t love bacon?! If you love bacon as much as I do wrapped around try this Bacon Wrapped Asparagus, Bacon Wrapped Chestnuts or Sweet and Savory Bacon Wrapped Shrimp.

Bacon Wrapped Brussels Sprouts

Bacon Wrapped Chestnuts

This bacon wrapped Brussels sprouts recipe is one AMAZING appetizer.

Impress your friends and family with this appetizer this holiday season.

It is simple to make and all the ingredients right in your pantry.

Simply prepare the Brussel sprouts and wrap this tightly in a strip of bacon.

Add a maple syrup and brown sugar glaze over top and bake until golden brown.

These bacon wrapped Brussels sprouts are just as AWESOME as they look.

Taste and looks are everything with this appetizer.

What you need to make bacon wrapped Brussels sprouts

These ingredients in the bacon wrapped Brussels sprouts are simple and delicious.

You will love how easily this comes together and everyone will be raving about them.

Bacon wrapped Brussels sprouts recipe are delicious and come together quickly.

Simply prepare the Brussel sprouts and add salt and pepper to taste.

Wrap your bacon around the Brussel sprouts tightly and place on the baking sheet.

Watch your bacon wrapped Brussel sprouts come to life and tasty AMAZING at your next holiday party.

  • Brussels Sprouts: chop off ends and wrap in bacon.
  • Salt and pepper: to taste
  • Bacon: uncooked and wrapped around the Brussel sprouts.
  • Maple syrup: a warm glaze.
  • Brown sugar: a little more sugar to enjoy on the Brussel sprouts.

How to make bacon wrapped Brussels sprouts

  • Prepare the baking sheet: Preheat oven to 400 degrees. Line a a baking sheet with parchment paper or aluminum foil and set aside. Trim the stem ends off the Brussels sprouts and put into a medium bowl. Sprinkle with salt and pepper.
  • Wrap bacon around Brussel sprouts: Cut the bacon in half and wrap each Brussels sprout with bacon and secure with a toothpick. Lay them onto the baking sheet.
  • Making the glaze: In a small bowl whisk together the maple syrup and brown sugar. Brush on top of the Brussels sprouts.
  • Bake bacon wrapped Brussel sprouts: Bake for 30 minutes tossing them half way through until the bacon is crisp and Brussels sprouts are tender. Remove immediately from the baking sheet and place them on a serving dish.

Tips for making bacon wrapped Brussels sprouts

  • How to pick Brussel sprouts: when purchasing Brussel spouts, look for tightly packed ones. Look for bright green and avoid any yellow leaves. The smaller Brussels sprouts are known to have a sweeter flavoring and cook thoroughly better.
  • How do you prep Brussels sprouts: first cut off the rough edges of the Brussels sprouts and remove any rough edges or damaged leaves. Wash your Brussels sprouts throughly.
  • Do you cut the Brussels sprouts in half: for this recipe there is no need to cut the Brussels sprouts in a half. It is best to bake them whole.
  • Add a toothpick: I find it easier wrapping the bacon over the Brussels sprouts then using a toothpick to hold it together while baking.

Awesome Bacon Wrapped Brussels Sprouts

Prep Time 5 minutes

Cook Time 30 minutes

Total Time 35 minutes

Author Alyssa Rivers

Servings 12 people

Awesome Bacon Wrapped Brussels Sprouts are beautifully wrapped Brussel sprouts in strips of bacon then brushed with a maple, brown sugar glaze and baked until golden brown. This is one MUST make appetizer this holiday season!

  • 1 pound Brussels Sprouts
  • salt and pepper
  • 1 pound bacon
  • 1/2 cup maple syrup
  • 3 Tablespoons brown sugar

Nutrition Facts

Awesome Bacon Wrapped Brussels Sprouts

Amount Per Serving

Calories 222 Calories from Fat 135

% Daily Value*

Fat 15g23%

Saturated Fat 5g25%

Cholesterol 25mg8%

Sodium 262mg11%

Potassium 256mg7%

Carbohydrates 16g5%

Fiber 1g4%

Sugar 12g13%

Protein 6g12%

Vitamin A 299IU6%

Vitamin C 32mg39%

Calcium 35mg4%

Iron 1mg6%

* Percent Daily Values are based on a 2000 calorie diet.

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The FDA Issues Hemp-CBD Warning Letters and a Consumer Update

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fda hemp cbd

The Food and Drug Administration (“FDA”) had a busy Monday this week. On November 25, the agency issued warning letters to 15 businesses selling hemp-derived CBD (“Hemp-CBD”) products as unapproved drugs. The FDA also released updated consumer guidance on Hemp-CBD.

Warning Letters

The recent batch of warning letters appear to turn on the marketing of Hemp-CBD products as unapproved drugs. The FDA has approved CBD as a drug: Epidiolex. Epidiolex is used to treat epilepsy and requires a prescription. That’s the only approved use of CBD as a drug. The FDA determines whether something is a drug based on how the product is marketed. Any marketing material that includes a health claim will cause the FDA to classify a product as a drug.

These letters warn Hemp-CBD companies that are making health claims about Hemp-CBD products. In addition, the FDA reiterates its view that Hemp-CBD cannot be added to food or dietary supplements and states that it “cannot conclude that CBD is generally recognized as safe (GRAS) among qualified experts for its use in human or animal food” based on the available data.

Consumer Update

The FDA’s update to consumers makes it appear that Hemp-CBD is a dangerous and unknown substance. Here is the FDA’s own summary of its latest updates:

  1. CBD has the potential to harm you, and harm can happen even before you become aware of it.
    • CBD can cause liver injury.
    • CBD 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.
  2. CBD can cause side effects that you might notice. These side effects should improve when CBD is stopped or when the amount ingested is reduced.
    • Changes in alertness, most commonly experienced as somnolence (drowsiness or sleepiness).
    • Gastrointestinal distress, most commonly experienced as diarrhea and/or decreased appetite.
    • Changes in mood, most commonly experienced as irritability and agitation.
  3. There are many important aspects about CBD that we just don’t know, such as:
    • What happens if you take CBD daily for sustained periods of time?
    • What is the effect of CBD on the developing brain (such as children who take CBD)?
    • What are the effects of CBD on the developing fetus or breastfed newborn?
    • How does CBD interact with herbs and botanicals?
    • Does CBD cause male reproductive toxicity in humans, as has been reported in studies of animals?

Let’s start with the FDA’s first point, that Hemp-CBD may hurt you and you may not realize it. During the investigation of Epidiolex, there was some evidence that CBD could cause liver injury. The FDA is therefore concerned that the widespread use of Hemp-CBD without doctor supervision, could result in liver damage. That’s an understandable concern. But the consumer update doesn’t stop there.

The FDA goes onto warn about Hemp-CBD interactions with alcohol and other drugs. I don’t want to diminish these interactions as a legitimate concern, but I do want to point out that concerns over drug and alcohol interactions are not limited to Hemp-CBD. Pretty much all drugs can interact with other substances in a negative way. The FDA didn’t frame the issue of Hemp-CBD interactions as something to be aware of or something to watch out for; it was presented as a way that Hemp-CBD can hurt consumers.

Last year, the World Health Organization (“WHO”) issued a report on CBD, concluding that “there is no evidence of recreational use of CBD or any public health related problems associated with the use of pure CBD.” WHO also raised the issue of CBD’s interactions with other drugs, but still reached the conclusion that CBD, as a compound, was generally low-risk to public health.

Let’s move onto the second point about Hemp-CBD side effects. Here is another passage from the FDA’s  Hemp-CBD consumer update:

In addition, CBD can be the cause of side effects that you might notice. These side effects should improve when CBD is stopped or when the amount ingested is reduced. This could include changes in alertness, most commonly experienced as somnolence (sleepiness), but this could also include insomnia; gastrointestinal distress, most commonly experienced as diarrhea and/or decreased appetite, but could also include abdominal pain or upset stomach; and changes in mood, most commonly experienced as irritability and agitation.

This passage raises some serious questions about side effects. It does not provide citations to the studies that lead the FDA to determine that these side-effects were serious enough to warrant inclusion on the FDA’s website. Also, how did the FDA make the determination that the most common change alertness is somnolence or the most common change in mood is experienced as irritability and agitation? Also, the FDA’s recommendation that side effects will improve if the use of CBD is stopped or the amount ingested is reduced has to based on clincial information, right? The FDA wouldn’t make an unsubstantiated medical claim online, especially when there is so much misinformation out there regarding Hemp-CBD, would it?

I don’t doubt that the FDA based its above conclusions regarding Hemp-CBD on some set of studies or other data set, but it’s hard to justify the FDA making these claims without any reference to how the FDA reached these conclusions. I’ve written before about how the FDA has a credibility problem with the American public. I don’t think this latest consumer update does the FDA’s credibility any favors.

The third point focuses on questions that remain about the safety of Hemp-CBD. These are important questions and should be considered. The fact is that the interest in CBD has eclipsed the scientific data we have available. The FDA’s questions are important and should be studied carefully. The problem is that the FDA appears to have already made a number of determinations about the dangers of Hemp-CBD without showing its work or refuting the data provided by the WHO.

Conclusion

The FDA’s approach to Hemp-CBD has been one of regulatory inaction and even obfuscation. Rather than providing guidance to or issuing regulations concerning manufacturers of Hemp-CBD products, the FDA has focused on telling consumers and Hemp-CBD businesses that most Hemp-CBD products are not legal and not safe. This latest round of warning letters and the consumer update are a continuation of this approach, but with greater intensity. The consumer update strikes a more urgent and alarming tone and the sheer number of warning letters sent out on one day is a departure from the FDA’s norm.  Hopefully, the FDA has also been working behind the scenes to also establish a regulatory framework for the safe manufacture and distribution of Hemp-CBD products. The FDA’s current approach to Hemp-CBD does not seem tenable for much longer.

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Is Hemp CBD Really Unlawful in California?

Hemp CBD

Dozens of times per month, I am asked by clients and potential clients whether hemp-derived cannabidiol (“Hemp CBD”) products are legal in California. With almost any other product, I can give an easy “yes” or “no” answer. But with Hemp CBD, my answer usually takes five to ten minutes to explain and ultimately ends with “there is no clear answer, all of this could change dramatically in the next few months, and all of this will change in the next year”. Given the perplexing state of Hemp CBD laws in this state, I thought it might help to try to answer this all-too-common question here as well.

To really understand the legal status of Hemp CBD in California, one should understand the state’s stance on “cannabis”. The term “cannabis” is a legally defined term that means the Cannabis sativa L. plant with more than .3% delta-9 THC and excludes hemp, which is legally defined as the Cannabis sativa L. plant with .3% or less delta-9 THC. Cannabidiol can be derived from either cannabis (in which case it is generally legal and may be sold through the licensed cannabis chain), or hemp (in which case the law is completely unclear in many cases). If this all seems a bit confusing, it is. I won’t even try to get into the different terminology that the federal government uses.

The state cannabis agencies, ironically, prohibit licensed commercial cannabis businesses from using Hemp CBD in manufactured cannabis products or selling Hemp CBD products in licensed cannabis retail stores. Beyond that, the state has not adopted a single law that expressly outlaws Hemp CBD processing, sale, or consumption (though some cities or counties in the state may actually have laws prohibiting such activities). Instead, about a year and a half ago, the California Department of Public Health’s Food and Drug Branch (“CDPH”) released an FAQ document which stated that in spite of the fact that cannabis derivatives may be lawfully added to edibles, Hemp CBD could not legally be added to foods (including beverages and animal foods) or dietary supplements. The FAQ says nothing about many other products, such as cosmetics, smokeable hemp, or Hemp CBD vapes.

These FAQs, notably, are based expressly on federal law, and do not explicitly cite California law to support CDPH’s attempted ban on Hemp CBD foods. There are really two main arguments in the FAQs for why Hemp CBD foods are unlawful:

  1. Hemp was a Schedule I (illegal) drug under the Controlled Substances Act. This argument is no longer valid, since the Controlled Substances Act (“CSA”) was amended by the 2018 Farm Bill to carve hemp out from the CSA. But either way, it is a bit odd that the CDPH was attempting to ban a substance based on its placement in the CSA, when the CDPH is also responsible for licensing cannabis manufacturers, where cannabis is a Schedule I narcotic.
  2. The FDA did not allow Hemp CBD to be added to foods. This is still the case, as the FDA recently made clear. But again, it is interesting that the CDPH is relying on a federal agency’s position when it comes to Hemp CBD, but not when it comes to cannabis.

While the FAQs really only cite federal law, the CDPH has apparently been threatening enforcement actions and even pulling products under a California law that most people in the state probably aren’t aware of: the California Sherman Food, Drug, & Cosmetic Law. The Sherman Law is in many respects similar to the federal Food, Drug and Cosmetic Act (which is the basis for the FDA’s power over Hemp CBD). Notably, the Sherman Law prohibits selling “adulterated” food. There are numerous different definitions for when food is “adulterated”, but generally it means that it is poisonous, harmful, or unsafe. Though CDPH has made no public fining that Hemp CBD is actually “adulterated”, it has apparently been using this provision as the basis for its enforcement actions. In fact, the Los Angeles Department of Public Health, which to some extent acts as a local enforcement arm for CDPH policies, issued guidance stating that Hemp CBD was an adulterant.

In response to the claim that Hemp CBD was an adulterant, California Assembly Member Aguiar-Curry introduced AB-228 in early 2019, which would have expressly found that Hemp CBD was not an adulterant. In fact, when I started writing about AB-228 back in January, that’s basically all the bill did, though subsequent amendments would have created a much more robust regulatory framework for Hemp CBD. Unfortunately, the bill stalled out in committee a few months ago, so for now there will be no progress on that front. But we are basically guaranteed to see a revival of the bill in some form or another in the 2020 legislative session.

Also interestingly, there appears to have been no public challenge in the courts over whether Hemp CBD actually even qualifies as an “adulterant”. It is certainly possible that over the next few months, we could see a company that was subject to CDPH or local department of health enforcement sue and claim that Hemp CBD is not an “adulterant”. It’s possible that the CDPH would cite the FDA’s assertions that Hemp CBD could have some toxicity issues, but whether those assertions are sufficient for a state to take enforcement actions under state law is not so clear.

Ultimately, there is no great answer to the question “is Hemp CBD really unlawful in California?”, but there are some good pieces of information to consider:

  • While there is no state law that bans Hemp CBD processing, sale, or consumption outside of the licensed cannabis chain, the CDPH or local departments of health may initiate enforcement actions for foods, beverages, animal products, or dietary supplements under federal authority or the Sherman Law.
  • There are a number of products that the CDPH has not publicly identified as unlawful, such as cosmetics. The CDPH has jurisdiction over cosmetics under the Sherman Law, and could take the same position that they are not lawful. But they did not do so in the FAQ. It’s also possible that they could take a similar position to the FDA, which has been much less aggressive when it comes to cosmetics unless they make medical claims.
  • The law is subject to change quickly. As we live in a state where a couple-page-long FAQ document, rather than a law or regulation, can support enforcement actions against an entire industry, it’s entirely possible that the CDPH or another agency could reverse course or take an entirely new position at the drop of a dime.
  • We are pretty much certain that the law will change dramatically in the longer term. The FDA will issue regulations for Hemp CBD (though that may take time), and it’s highly likely that the California legislature will work on new Hemp CBD legislation in 2020.

So stay tuned to the Canna Law Blog as we continue to cover developments on the Hemp CBD front in California.

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Hemp-CBD Across State Lines: Mississippi

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The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA.

This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp CBD”). Each Sunday, we summarize a new state in alphabetical order. Today we turn to Mississippi.

Mississippi is one of the few states that did not allow hemp cultivation under the 2014 Farm Bill. As of this writing, Mississippi still doesn’t allow for hemp cultivation. But don’t fret, there is a task force!

Last year, Mississippi enacted House Bill 1547 which established the Mississippi Hemp Cultivation Task Force. The Task Force will study hemp cultivation, market potential, and job creation. The Mississippi Department of Agriculture has more information on the task force here.

Because Mississippi law doesn’t distinguish between marijuana and hemp, the sale of hemp-based products, including Hemp-CBD, is risky at best and illegal at worst. Mississippi has a very limited medical marijuana program, which allows the limited sale of CBD products. Most over-the-counter Hemp-CBD sales would not fall within the boundaries of this program. In addition, the Mississippi Department of Public Health and Safety recently issued a statement warning the public about the dangers of Hemp-CBD.

Mississippi’s hemp program is really non-existent at this point. Mississippi hasn’t exhibited a strong aversion to hemp like some other states (looking at you Idaho) but it also is in a small minority of states with no hemp cultivation regulations. This may change in light of the 2018 Farm Bill, but as it currently stands, Mississippi is not a great place for hemp-related activities.

For previous coverage in this series, check out the links below:

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The BCC’s Fight to Allow Home Delivery Throughout California

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It’s no secret that California’s cannabis operators are currently in a regulatory and business environment where red tape, the illegal market, and significant taxes make life hard. At the same time, the state is trying to protect, promote, and grow the industry in a variety of ways, one of which is fighting off cities and counties to ensure that retail cannabis home delivery is allowed in every city and/or county no matter what.

As a brief history primer, California is a very strong local control state when it comes to cannabis. Pursuant to the Medicinal and Adult-Use Cannabis Regulatory and Safety Act (“MAUCRSA”), before you can secure a state license for your cannabis business you must first obtain local approval from the city or county in which you plan to operate. And the majority of cities and counties still ban commercial cannabis activity; the ones that do allow it tend to lean towards medical-only sales and/or there can be some serious barriers to entry depending on the city or county. Further, Proposition 64 (which co-exists with MAUCRSA) has clear promises and directives to maintain local control and a city’s or county’s ability to ban any kind of commercial cannabis activity outright (with the exception of the transport of cannabis between licensees via public roads).

Currently, according to MAUCRSA:

  1. “[MAUCRSA shall] not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related to reducing exposure to secondhand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction.”;
  2. “A local jurisdiction shall not prevent delivery of cannabis or cannabis products on public roads by a licensee acting in compliance with [MAUCRSA] and local law. . . .”; and
  3. “Licensing authorities shall not approve an application for a state license under this division if approval of the state license will violate the provisions of any local ordinance or regulation [. . .] The licensing authority shall deny an application for a license under this division for a commercial cannabis activity that the local jurisdiction has notified the [Bureau of Cannabis Control (“BCC”)] is prohibited [. . .].”

In January of this year, pursuant to the final MAUCRSA regulations, and despite the foregoing, the BCC determined–seemingly based on the “use of public roads” language above–that home delivery does not require any city or county local approval under MAUCRSA. Therefore, BCC explained that retailer licensees can undertake home delivery in any jurisdiction in the state– even in those that completely ban delivery. Specifically, the BCC adopted Rule 5416(d), which says that “A delivery employee may deliver to any jurisdiction within the State of California provided that such delivery is conducted in compliance with all delivery provisions of this division.”

As a result of BCC’s action,  24 cities sued the BCC in Fresno County court earlier this year to overturn the new delivery rule. Here’s the complaint for your viewing pleasure. The crux of the fight is whether the new delivery rule is consistent with Proposition 64 and MAUCRSA and whether the BCC has the authority to adopt and implement the rule. The cities argue the new delivery rule is completely inconsistent with both, and that the BCC has gone beyond its rulemaking authority under MAUCRSA. The cities also allege that if the BCC wants statewide delivery without any kind of local control the California Assembly is the body to lawfully make that call via a change to the statute.

While the cities and the BCC duke it out over interpretations of MAUCRSA and the BCC’s regulatory authority (with a calendared trial date of April 20 next year), a new litigation matter has developed where a cannabis operator (East of Eden) is suing Santa Cruz County to enforce its rights under the new delivery rule. Earlier this month, the BCC (via the State Attorney General) filed a motion to join the local lawsuit to protect the new delivery rule. The BCC is otherwise staying mum for any other strategic reasons it has for joining the local beef. We’ll know by January 2 whether or not the BCC will get to be a party in the Santa Cruz lawsuit. And we fully anticipate that this may not be the last local fight over the new delivery rule.

The bottom line is that in the wake of the BCC and the cities fighting it out over the new delivery rule, cannabis operators hang in the balance yet again. Risk tolerant businesses will no doubt try to take advantage of the new delivery rule, but they do so at significant risk where cities and counties are still taking the position that the rule is invalid anyway. In turn, unless and until we have a final decision from a court on the matter, cannabis retailers would be wise to pump the brakes on delivery into cities and counties that explicitly ban it.

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How to Export Medical Cannabis Internationally

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Over the past few years, our international trade team has advised a rapidly expanding suite of clients on import/export issues related to cannabis. We regularly advise clients on manufacturing overseas, hemp import/export issues, and customs. Currently we are also working on heady questions surrounding international treaties and cannabis. One thing no one has hired us for yet, though–and which I would love to work on–is shipping medical cannabis internationally.

How do you ship medical cannabis internationally? Here are the steps:

  1. Start in a country with federal laws allowing medical cannabis production (there are quite a few);
  2. Start in a country with a progressive national health department and exporting authority (any of Canada, the Netherlands, Uruguay, Colombia, Israel, Jamaica, South Africa, Lesotho or Australia would probably suffice);
  3. Find a country that allows medical cannabis imports (there are quite a few, especially in the E.U.);
  4. Strike a deal and acquire import and export permits; and
  5. Report all imports and exports to the International Narcotics Control Board (INCB) as required.

That last step is worth a paragraph. The INCB is the United Nations’ independent control body for international drug conventions. In the context of cannabis, the 1961 Single Convention allows cannabis to be produced and administered for medical and research purposes under certain conditions. The required controls include that a government agency designates the area where cannabis can be cultivated, licenses producers, and has the exclusive right to import, export, trade at wholesale, and maintain supply. Each of the export countries listed above has taken steps along these lines.

Of course, exports will always be driven by demand. And demand is not solely a matter of quantity; product categories are also dispositive. To date we have seen medical cannabis import/export in categories including whole flower, oil, topicals and capsules. Some of this cannabis has been exported for research purposes, but the majority seems to have shipped for medical application. This is generally because the importing countries allow medical marijuana or cannabis consumption, but do not license production and do not tolerate home grow.

The medical cannabis import/export market is very new. This means that aside from the legal complexities, there are practical matters to work through. Foremost among these are quality standards. Although good manufacturing practice (GMP) adherence is required to ship medical cannabis to the E.U., for example, there are no standardized regulations between and among countries for medical cannabis quality control— including for content, composition, adulterants, potency and even levels of toxic residues. (Think about that… for a “medicine”!) Another critical issue is supply chain integrity. Finally, a thicket of political and policy considerations must be navigated, extending to social responsibility and end-user frameworks.

Firms pressing into the medical cannabis export space typically describe their efforts as long-term investments rather than one-off projects. This makes sense given the capital requirements for entry and the political wherewithal needed to gain international footing. Indeed, the quantities of cannabis shipped will be sizable and spaced at irregular intervals: this is not an area for dabblers.

Ultimately, exporting medical cannabis from places where it grows best, like Columbia, to places it might not, like England, seems natural – just as it does for Columbia to grow and send coffee overseas. Today, Canada has a big head start on export; however, one wonders whether it makes sense for cannabis to be grown north of the 42nd parallel long-term. At some point, the legal regime will settle out and market efficiencies may follow.

In all, legal and political factors that once made medical marijuana export unthinkable are changing, and changing very fast. The international distribution channels being built today will one day serve as conduits for the recreational cannabis trade as well. Until then, we will continue to monitor and report on developments in this fascinating space.

For more on the international cannabis trade, check out the following:

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Hemp and CBD: Submit Your Comments on USDA Interim Hemp Rules By December

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The hemp industry is up in arms over the USDA’s interim rules establishing a domestic hemp program.  As of this writing you can find some 900 comments published on regulations.gov. The din of complaints about the deleterious effect of several rules caused Senator Chuck Shumer to send a letter on December 3 to U.S. Agriculture Secretary Sonny Purdue urging the Secretary to extend the public commend period by 60 days.  Presently, the public comment period ends on December 30, 2019 and it is unclear whether the comment period will be extended.

Most of us in the hemp industry are well-aware of the major issues in the interim rules: 15-day pre-harvest testing requirements, total THC, DEA laboratories, and crop insurance to name a few.  This post is to urge everyone working in hemp to comment on how the interim hemp rules will affect the hemp industry and how the rules ought to be amended.

Crop Insurance: No coverage for hemp crops above .3% Total THC

A major achievement of the 2018 Farm Bill was that it cleared the way for the Federal Crop Insurance Corporation to offer policies to hemp farmers. Producers can obtain coverage under the Whole-Farm Revenue Protection (WFRP) program for 2020 if they are now part of a Section 7606 state or university pilot program authorized by the 2014 Farm Bill or once a USDA-approved plan is in place. WFRP allows coverage of all revenue for commodities produced on a farm up to a total insured revenue of $8.5 million. WFRP coverage is often used for specialty and non-traditional crops.

However, hemp with a THC level above the compliance level will not constitute an insurance cause of loss and hemp will not qualify for replant payments under the WFRP. And the interim rules include fairly strict provisions requiring the destruction of hemp that contains more that .3% Total THC.

But THC levels can fluctuate because of numerous factors beyond the control of any farmer. The USDA recognized this when it decided against a seed certification program in the interim rules because “the same seed used in one State to produce hemp plants with THC concentrations less than 0.3%, can produce hemp plants with THC concentrations of more than 0.3% when planted in a different State.”  THC levels can also fluctuate because of weather and other factors and often vary throughout the preharvest life of a hemp plant.

Here is what one farmer from North Carolina had to say:

The genetics of current hemp crops are such that THC levels vary by cultivar, growing condition, etc. They are not always consistent across regions or seasons, even with the best planning, care, and genetic selection. This rule should NOT require farmers to destroy their crops if above .3% THC. In this industry, farmers are at greatest risk of losing their shirts financially, especially if you destroy their entire crop. The regulation should instead allow the farmer to process the crop through extraction, distillation, and isolation, the output of which are cannabinoids separated out in individual containers (CBD, CBG, THC, etc).

The lack of crop insurance coverage for hemp that fails testing when combined with the rules about crop destruction, creates enormous risk for hemp farmers.  A farmer may try to do everything right only to end up with an uninsurable crop that must be destroyed and a complete loss of their investment into hemp farming.  And, as the farmer from North Carolina notes, the interim rules do not provide for post-harvest remediation of hemp with total THC levels greater than .3%.

Total THC: Delta-9 + THCA

Nathalie Bougenies has written on this topic extensively, so I will just give you an excerpt and a few links:

To the disappointment of many in the hemp industry, the USDA adopted a total THC testing requirement. As we previously explained, total THC is the molar sum of delta-9 THC (“THC”) and delta-9 tetrahydrocannabinolic acid (“THCA”). Using a total THC testing protocol will create additional hurdles for hemp farmers who are already engaged in a precarious industry. Not only does this testing method tend to increase the THC concentration in the hemp sample, and thus, pushes it over the 0.3 percent limit, it also limits the type of strains farmers can work with. This is because few hemp genetics currently on the market would comply with a total THC testing method. Consequently, this rule will force hemp farmers to carefully select the types of seeds they buy.

Most everyone agrees that the Total THC requirement is terrible. Here is what one small family farmer commented to the USDA:

To require a 0.3 percent TOTAL THC limit would devastate the CBD and flower industry.  Moving forward into 2020 many crops would have to be destroyed that have otherwise been able to be used for extraction for the last several years.  Most farmers do not understand what this TOTAL THC methodology means for them.

For more background on this issue, see here, here, and here. For a detailed scientific analysis, Rod Kight recently posted a modified version of a comment written by Marion Snyder, PhD, Chief Scientific Officer of Clearwater Biotech. Dr. Snyder’s findings should alarm everyone in the hemp industry.

15-day preharvest testing by a DEA registered laboratory

The USDA rules require that hemp be sampled and tested for total THC within 15 days of anticipated harvest. And the rules further require that the testing labs be registered with the Drug and Enforcement Administration (DEA). But current DEA rules limit registration to jurisdictions in which medical or  recreational marijuana is legal.  Although the number of such jurisdictions is growing, no one in the industry believes that the number of DEA registered laboratories can handle the quantities of hemp being produced by American farmers. This is an area where Congress may need to place pressure on the USDA and DEA to avoid causing a significant bottleneck in the hemp supply chain.

Your Comments Matter

Everyone in the hemp industry should take a few minutes to submit a comment on the interim rules.  Because the USDA was directed to devise and implement new rules without delay, the USDA did not follow the ordinary “notice and comment” process with which federal agencies generally must comply in the rulemaking process. The USDA’s decision not to follow this process is explained thoroughly in the interim rules themselves and was reviewed by the U.S. Government Accountability Office (GAO). You can read the GAOs report on that here. I am not saying the USDA did anything wrong in foregoing a two-year notice and comment period given the need to move swiftly to establish a hemp production program. But the rush to issue rules does mean that comments submitted on the interim rules matter as the USDA works toward issuing final rules.

In sum: Everyone in the hemp industry ought to submit a comment. Submitting a comment is easy: just click here.  Note that you can also upload documents, such as prepared statements or other relevant materials. If you’d like assistance with crafting a comment, please  reach out to one of our Hemp-CBD regulatory attorneys.

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Federal Agencies Provide New Guidance for Hemp Banking

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The tides have been rapidly changing for hemp companies to gain access to banking, which has not traditionally been available to hemp companies due to the fact that hemp was (sort of) federally illegal until about a year ago. As we previously explained:

Commercial marijuana activity remains a federal crime,  and the Bank Secrecy Act (“BSA”) generally prohibits financial institutions from accepting marijuana-generated dollars. Financial institutions that work with marijuana businesses must conduct due diligence to ensure that marijuana businesses are complying with state law. That includes regularly submitting Suspicious Activity Reports (“SARs”) to the Financial Crimes Enforcement Network (“FinCEN”). Regulated commercial hemp activity is not a federal crime, but hemp’s close proximity to marijuana makes it a generally high-risk endeavor for financial institutions who generally don’t have a high risk tolerance to begin with. That has made it very difficult for many hemp and hemp-derived CBD (“Hemp-CBD”) businesses to access bank accounts.

Since the 2018 Farm Bill was signed and hemp was removed from the Controlled Substances Act, our hemp attorneys have seen more and more banks and credit unions take on various kinds of hemp clients (including hemp cultivators, processors, and even Hemp-CBD sellers). But still, many financial institutions have been hestitant when it comes to servicing hemp clients. As of the last few months, that has been changing.

As we reported over the summer, in August, the National Credit Union Administration (“NCUA”) released Interim Guidance on Serving Hemp Businesses. This guidance, though short, is fairly robust and provides ways for credit unions to verify that hemp clients are engaged in lawful business.

This week, on December 3, 2019, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Financial Crimes Enforcement Network (“FinCEN”), and the Office of the Comptroller of the Currency in consultation with the Conference of State Bank Supervisors released joint guidance entitled, “Providing Financial Services to Customers Engaged in Hemp-Related Businesses”. The guidance was intended to “provide clarity regarding the legal status of commercial growth and production of hemp and relevant requirements for banks under the Bank Secrecy Act (BSA) and its implementing regulations.”

There are a few key points from the joint guidance:

  1. The quoted language (and other language in the joint guidance) refers just to commercial growth and production of hemp and even notes that the FDA retains jurisdiction over foods, drugs, and cosmetics. The 2018 Farm Bill only regulates hemp production, and does not really discuss hemp processing or the sale of Hemp-CBD goods. It’s not totally clear from the text of the joint guidance whether it was intended to cover only cultivation, and it certainly can be read that way. Therefore, it’s not yet clear whether banks will service clients engaged in those activities.
  2. The joint guidance makes clear that banks won’t need to file SARs for clients based solely on the fact that they are engaged in cultivation of hemp. Banks will still need to follow standard SAR procedures and file SARs if there are indicia of suspicious activities.
  3. The joint guidance makes clear that banks have discretion about what services to offer, but that bank clients must comply with applicable law. This puts the onus on banks to vet their customers to ensure compliance with hemp laws and regulations. Some things that the joint guidance expressly requires banks to do are to have BSA and anti-money laundering (“AML”) compliance programs commensurate with the level of complexity and
    risks involved, comply with applicable regulatory requirements for customer identification, SARs, currency transaction reporting, and risk-based customer due diligence (including collecting beneficial ownership information for legal entity customers).
  4. Though the joint guidance does cover marijuana businesses, it makes clear that banks servicing those businesses should follow the FinCEN guidance FIN-2014-G001 – BSA Expectations Regarding Marijuana-Related Businesses.

The joint guidance also states that additional FinCen guidance will be released in the future. Hopefully by then, banks will have more comprehensive guidance for servicing hemp clients. But for now, this joint guidance is certainly a step in the right direction.

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