California has a rocky history when it comes to hemp-derived CBD. Despite the fact that the state passed a robust medical cannabis and recreational program for cannabis, for years it has held the mysterious position that many types of hemp products simply cannot be sold. Essentially, food, beverages, and supplements are a no-go, according to the CA Department of Public Health (an older analysis of mine on the CDPH’s position can be found here).
For some history, lawmakers tried to pass AB-228 in 2019, which would have paved the way for many new types of CBD ingestible products in California. This bill made it quite far through the state parliament, but ultimately died shortly before the end of the process, among other things under heavy resistance.
Last year, at the very end of the legislature, legislators tried to quickly draft and pass a bill AB-2028 (you can read it briefly here) that did not get enough support to pass it. A big part of the reason AB-2028 failed was because it was rolled out so late in the session, largely due to delays in COVID-19 and the relocation of resources by the state.
The 2021 legislature recently started and a new CBD bill, AB-45, has been introduced. As with the previous calculations, the goal of AB-45 is to “legalize” many different CBD products. AB-45 inherits many of the concepts from AB-228, but adds a few things that – while intended to jeopardize seemingly controversial aspects of previous legislative attempts – are sure to upset some people in the industry.
Below is a general analysis of some of the key AB-45 points:
- AB-45 will essentially be a temporary measure until the government formally regulates CBD products. Once that happens, the state will be forced to comply with these regulations if they differ.
- The bill would give the CDPH regulator on CBD products. Note that there are no existing CBD laws, but CDPH is committed to effectively regulating CBD products through the FAQ document linked above. It will be interesting to see how CDPH decides to regulate CBD products and how it differs from cannabis products.
- CBD product manufacturers are prohibited from making untrue health-related statements about their products. This is broadly in line with what the Food and Drug Administration has questioned in recent years, although it is not as broad as the FDA’s position that essentially prohibits any health-related claim. The law also contains other stringent labeling requirements that are broadly in line with the requirements of other states.
- Food wholesalers that manufacture products that contain hemp derivatives must comply with good manufacturing practices under California law and are not allowed to use hemp in food or dietary supplements unless it comes from a state or county that imported hemp Production plan in accordance with federal law and the cultivator concerned is in good condition according to the laws of its jurisdiction. This means that it is vital for manufacturers of hemp products to ensure that hemp is sourced from a legitimate source.
- The bill states that foods, beverages, dietary supplements and cosmetics are not considered adulterated just because of the intake of CBD. This is an important point as the CDPH and local health authorities have held the position on many occasions that CBD is an adulterer. Of course, this new law wouldn’t say these products are adulterated by definition – for example, adding toxic or harmful substances could still adulterate a product – but it would dramatically change the state’s view of CBD.
- “Industrial Hemp Products”, defined as foods, food additives, dietary supplements, herbs and cosmetics (but NON-smokable products as explained below), may only be sold if they have, among other things, a Certificate of Analysis stating that they have an acceptable THC level Salary and were obtained from legal hemp.
- The CDPH may set age requirements for some products to be sold. This is an interesting feature of the bill. The state has (so far) decided not to require that all CBD products be sold to anyone over the age of 21 or 18, but instead gives CDPH the discretion to decide so essentially on a product basis and based on scientific research. That said, the bill contains provisions that restrict advertising to people under the age of 18. So it is certain that at some point age requirements will be imposed.
- The bill clarifies that hemp derivatives cannot be added to medical devices, prescription drugs, nicotine, tobacco, or alcoholic products, or any other smokable product (including smokable flower and vapor products). This last category is sure to be a problem for the industry as there are many companies that make and sell smokable hemp products across the state. This provision of the bill is probably the most hotly debated provision during the legislative cycle.
Again, these are just a few of the larger ticket items in the new bill, and there are many more. There is a high likelihood that parts of the bill will change and things will be added or subtracted over time. We plan to closely follow AB-45 during the state parliament. So stay tuned.