A few weeks ago I wrote a post titled California Tries Again with CBD discussing a new law (AB-45) that was supposed to establish a legal framework for the manufacture and sale of certain hemp-derived products To create products. These products include foods or beverages that contain cannabidiol (CBD). In this post I mentioned that the provisions in AB-45 contain bans on smokable hemp products, and in this post I want to dig a little further into that provision and see if it has a chance of becoming law.
Currently AB-45 partially offers:
Industrial hemp must not be included in products in any of the following categories unless specifically approved by the US Food and Drug Administration.
. . .
(3) Processed smokable products including, but not limited to, electronic cigarettes containing nicotine.
(4) Smokable flower, including but not limited to hookah and hookah with nicotine.
(5) A product that contains nicotine[ or] Tobacco. . . .
Virtually every type of smokable hemp product would be banned on unpacking, from flowers to vape oil. Even if the definition were not so broad, the bill would give the Department of Health the power to ban other products it considers a “pose” a risk to human or animal health through regulation “- which means that other smokable products could be banned. Apparently, public health officials requested the inclusion of these regulations, so it’s not hard to see how they would regulate other products.
The above prohibition is subject to one major restriction in particular: a smokable product can be approved if the FDA expressly approves this product. Judging by how the FDA has been handling hemp products since late 2018, and given the recent vape crises that have led regulators to enforce all kinds of bans on smokable products, this will likely be many, many years (if any) not happen. .
So the main problem is the likelihood that AB-45 will pass and that includes that ban on smokable hemp. Perhaps the best place to start is in California’s failed attempt to pass similar laws in 2020, AB-2028. That law contained a similar ban on hemp, which appears to have been the source of massive backlash. Ultimately, the bill was unsuccessful because no agreement on its terms could be reached by the end of the legislative period.
AB-45 will no doubt face the same type of opposition this year, and it has a lot more time to fight its way through the state assembly than the hasty AB-2028. There have been reports of complaints from hemp growers in the state: it is likely that they will persist, as eliminating an entire product category could affect the marketability of state-grown hemp.
AB-45 is still in its infancy, giving the state plenty of time to lift the ban on smokable hemp. If it doesn’t, there is a serious chance the bill will fail, and this is the third year in a row that the state has failed to regulate the CBD. If the state manages to get a ban on smokable hemp products in place, it is likely to result in immediate litigation, as in Indiana and Texas.
All in all, a complete ban on smokable hemp products makes little sense. The state has time to rethink this and find a better solution. For more information on California’s fight against smokable hemp, visit the law Law Blog.