Industrial hemp products, including CBD, are finally legal in California

Many people ignore – or just won’t believe – the fact that until recently California was a bit of a villain when it came to the manufacture, distribution and sale of industrial hemp products, namely hemp CBD in food. Beverages, dietary supplements, animal products and cosmetics. However, AB-45 will change that once Governor Newsom inevitably enacts it as it has now passed the Senate and Assembly.

A brief story about California’s love / hate relationship with hemp CBD is warranted. The California Department of Health (CDPH) posted an FAQ on its website in July 2018, in which they believe that CBD is illegal to ingest, in line with the current position of the Food and Drug Administration (see our analysis of these FAQs here ). California essentially viewed products for human and animal consumption as being inappropriately “adulterated” when they contained hemp CBD.

Photo by Anshu A via Unsplash

In the next few years CDPH published 13 violations, 7 voluntary condemnation and annihilation letters and 9 embargoes – all without ever creating any real regulation. The local health authorities were also active in enforcing this.

RELATED: Will California Really Ban Smokable Hemp?

In 2019, California tried, but failed, to pass AB-228, which would have legalized CBD. Last year California tried to pass AB-2827 and AB-2028, both of which aimed to legalize CBD. Finally, at the end of 2020, the AB-45 made its debut.

RELATED: Will California Ever “Legalize” CBD?

As with its previous legislation, AB-45’s goal is to “legalize” a wide variety of CBD products. AB-45 takes many of the concepts from AB-228, but adds a few things that – while apparently intended to compromise controversial aspects of previous legislative attempts – will upset some people in the industry (like banning all smokable hemp products, including vapes). ). Here are some of the key highlights of AB-45:

1. AB-45 specifically states that the DCC regulates to allow hemp CBD to enter the state-licensed cannabis supply chain, which includes state-licensed retailers being allowed to sell standalone hemp-CBD products (which is currently not allowed) . to do, but everyone and their mom seem to be violating this BCC / CDPH policy hangover);
2. The Department of Food and Agriculture and the CDPH will be the primary agencies overseeing the regulation of hemp cultivation and production, distribution and sale of hemp manufactured products (rather than the DCC). The CDPH will be responsible for setting the licensing and registration systems for industrial hemp manufacturers, traders, laboratories and retailers;
3. Manufacturers, distributors and retailers of hemp products may use “. . . any health claim that is in any way untrue regarding the health effects of consuming any product containing industrial hemp or cannabinoids, extracts or derivatives of industrial hemp, in violation of this Part. ”“ Health claim ”means“ a statement in Related to health and includes a statement with a curative or therapeutic character that expressly or tacitly suggests a connection between the consumption of industrial hemp or industrial hemp products and health benefits or effects on health ”.

4. Industrial hemp may not be used in food supplements or food unless the manufacturer can prove both: (1) All parts of the hemp plant that are used in food supplements or food products come from a state or country that has an established and approved industrial hemp has a program that inspects or regulates hemp under a food safety program or equivalent criteria to ensure safety for human or animal consumption; and (2) the industrial hemp grower or breeder has a good reputation and complies with applicable laws of the state or country of origin.

5. “Hemp Manufacturer” means one of the following: (1) A processor who extracts cannabinoids from hemp biomass. (2) A processor who buys industrial hemp raw extract for the purpose of making an end product (and end product means a product that is sold at retail).

6. Hemp testing laboratories cannot have a direct or indirect “interest” in the facility for which the tests are being conducted; have no direct or indirect interest in any facility that grows, processes, distributes, dispenses, or sells raw hemp products in that state or any other jurisdiction; and has no commercial cannabis license except as a licensed cannabis testing laboratory.

7. Industrial hemp products may only be sold if the following conditions are met: (1) You have a certificate of analysis from an independent testing laboratory that confirms both:

   (a) The raw industrial hemp extract in its final form does not exceed the THC concentration of an amount permitted by the CDPH in the ordinance, or the mass of the industrial hemp extract used in the final form product does not exceed a THC concentration of 0.3 percent.

   (b) The industrial hemp product has been tested for hemp derivatives stated on the product label or in the associated advertising; and (2) the industrial hemp product was made from industrial hemp grown in accordance with the 2018 Farm Bill and applicable California Hemp Growing Act.

8. Industrial hemp may not be infused or introduced into any of the following products: medical devices, prescription drugs, all products containing nicotine or tobacco, and alcoholic beverages (the CDPH is free to expand and impose this list, by the way.) Age restrictions for customers when purchasing certain products Industrial hemp products if they believe there is a risk to public health and safety).

9. The manufacture or sale of inhalable products is prohibited unless this is solely for sale in other countries. Interestingly, this ban becomes “. . . expired and will be repealed on the date of the entry into force of a measure adopted by the legislature that establishes a tax on inhalable products and expresses the intention of the legislature to meet the requirements of this section. “

10. AB-45 controls and permits hemp industrial products for pets as well as the import of non-governmental raw hemp extract.
11. There will now be detailed testing requirements for both domestic and foreign raw hemp extract to be used in the manufacture of industrial hemp products before the end products hit retail shelves. So pay attention to these regulations of the CDPH. There will also be advertising and marketing requirements, some of which are already similar to state-licensed commercial cannabis laws and regulations.

Photo by Elsa Olofsson via Unsplash

The passage of AB-45 is significant in that California will no longer be a CBD dinosaur. Hopefully the FDA takes note of this and begins its own rulemaking process to finally address the manufacture, distribution and sale of hemp CBD products within a federal framework that rejects piggybacking from the 2018 Farm Bill. However, the next step for California is for the CDPH (likely in an emergency) to put in place some rules to bring the state’s hemp CBD program to life. Stay tuned!

Hilary Bricken is a partner at Harris Bricken. This story was originally published on the Canna Law Blog and reposted with permission.