If you’ve read our blog for the past few years, you know that California has taken a pretty preposterous position on hemp-derived CBD in recent years. Although the state has brought charges of legalizing cannabis (in California, the law defines “cannabis” only as marijuana, not hemp), the state simply cannot match its act with anything made from hemp. In 2018, the California Department of Health (CDPH) published an FAQ stating that hemp CBD cannot be added to any orally consumable product such as food, beverages, dietary supplements, or animal products, which has been the rule ever since.
An older analysis by me on the position of the CDPH can be found here. In my opinion, the CDPH’s position was very suspicious – there is no law in the state that actually forbids adding CBD to anything; The CDPH just followed the position of the Federal Food and Drug Administration (FDA). Although the FAQ didn’t specifically say so, it appears that the CDPH actually took the position that CBD was an adulterer under the state’s Sherman Food, Drug, and Cosmetic Law (which is similar to the federal Food, Drug and Cosmetic Act, which the FDA enforces). Local authorities such as the Los Angeles Department of Health issued statements stating that CDPH was an adulterer, allegedly because of CDPH’s occupation. Without any rulemaking process, CDPH has effectively banned CBD consumables, and CDPH and local authorities have actually enforced that position.
While CDPH made its stance relatively clear on oral consumables, it wasn’t entirely clear on cosmetics. Cosmetics are not even mentioned in the FAQ and the full title is “FAQ – Industrial Hemp and Cannabidiol (CBD) in Food”(That’s not my emphasis, it’s CDPH’s). Following this FAQ, it was unclear how CDPH stood on cosmetics. Under Sherman Law, the state technically has authority over cosmetics, so it is not clear what the agency’s position was and many people assumed that the agency’s silence on CBD in cosmetics meant they were okay with them was.
However, in January 2021, CDPH tacitly published a revised FAQ, which is now referred to as “CDPH Information on Industrial Hemp Derivatives (IH) Including Cannabidiol (CBD)”. In the revised FAQ on one page, the position of the FDA on the prohibition of CBD as a food additive, dietary supplement or animal feed is first explicitly adopted and then it is expressly stated that CBD is an adulterant for food and cosmetics. Here is the relevant language:
California’s Sherman Food and Drug Law provides that all foods (including beverages and pet food) will be adulterated if they carry, carry, or contain unapproved food additives A cosmetic (including lotion and ointment) is adulterated if it carries or contains toxic or harmful substances that may render it harmful to the user under the conditions of use prescribed in the labeling or advertising of the cosmetic or under the conditions of use given common or common.
Peeled hemp seeds, hemp seed protein, and hemp seed oil are the only ingredients of hemp that are GRAS and approved in food. CBD derived from hemp or any other source is not currently allowed in any of the items regulated by the Food and Drug Branch of the California Department of Health, including Food, drugs, and cosmetics.
And let’s go. CDPH has now taken the incredible position that CBD cannot even be added to cosmetics such as lotions or ointments in the state of California. This position is even more restrictive than the FDA’s position on the same subject. Overall, the agency seems keen to do everything in its power to make life difficult for the industry. There are numerous states doing their best to regulate CBD products and make sure they are safe despite the FDA’s position, but California – the largest economy in the US – has chosen to just ban the products. However, we are currently not aware of any published enforcement efforts.
Obviously, this isn’t good for CBD companies, although there may be light at the end of the tunnel (a big problem) as efforts are being made to pass actual laws forcing CDPH and other agencies to regulate CBD products. We’ll see if that changes. So stay tuned for more updates from the law Law Blog.