California is on the brink of legalizing hemp-derived cannabidiol (“Hemp CBD”) in many products—well, sort of. The law at issue is Assembly Bill 228 (“AB-228”), and I’ve been writing about it since it was introduced in January 2019 (for my posts on it, see here, here, and here). As of today, it’s made its way through the California Assembly and most of the way through the California Senate with very little resistance. AB-228 is likely to pass soon, and because it is what’s called an “urgency” statute, will become immediately effective.
Since I started writing about AB-228, the bill has morphed a lot, and now actually has some teeth. Even if it passes though, Hemp CBD may not be completely legal in the Golden State. Here’s a brief explanation of what’s happened, and what’s at stake.
About a year ago, the California Department of Public Health’s (“CDPH”) released its now-infamous Hemp CBD FAQs, which take the position that Hemp CBD is illegal in basically all foods, beverages, and some other products (but note, there is not a single law or regulation on the books anywhere in the state that takes this position). The FAQs “outlawed” Hemp CBD based on the federal Controlled Substances Act (which as of December 20, 2018 and the passage of the 2018 Farm Bill no longer hemp illegal) and the fact that the federal Food and Drug Administration (“FDA”) did not allow the addition of Hemp CBD to the same products that are mentioned in the FAQs. (For a discussion of the FDA’s policy memos which claim that Hemp CBD is illegal, see here and here).
While the FAQs didn’t really cite California law (except to define foods, etc.) as the basis for enforcement, it’s come to light that the CDPH has been relying on the California Sherman Food, Drug, & Cosmetic Law (not to be confused with the federal Sherman Act, an antitrust law), to pull Hemp CBD products from retail and wholesale operations. The CA Sherman Law gives the CDPH authority over foods and beverages and allows them to target products that it deems “adulterated”. In a sense, the CA Sherman Law is a lot like the federal Food, Drug and Cosmetic Act that the FDA gets its authority from (hence all of the citations to FDA policy).
Originally, AB-228 was very narrow and only would have created a law saying that the mere addition of Hemp CBD to foods and cosmetics did not adulterate them. Over the last few months, in various committees, more and more things have been piled onto the bill. Here are some of the highlights of the current version:
It’s clear that if AB-228 becomes law, it will be a huge victory for the burgeoning hemp industry across the state. But there are a few key issues that may still not wipe out the gray areas:
In spite of these issues, if AB-228 passes it’ll create a lot of certainty for hemp businesses in California, where there previously wasn’t much. We’ll stay tuned on updates to this law and how it will affect the hemp industry in California, and as a whole.