Hemp, Hemp, Hooray in California! AB 45 is Now Law

As we anticipated, AB-45, California’s comprehensive legislation that finally regulates (and legitimizes) industrial hemp products is now law and takes effect immediately. Governor Newsom signed the bill into law this week. Pretty huge step in the right direction for California’s booming hemp products marketplace.

How far has California come on the hemp spectrum when it comes to hemp infused foods, beverages, and everything in between? Well, in 2018, the California Department of Public Health (CDPH) Food and Drug Branch issued a pretty surprising FAQ about hemp-infused food and beverages– namely addressing CBD. The FAQ states, among other things, that:

“although California currently allows the manufacturing and sales of cannabis products (including edibles), the use of industrial hemp as the source of CBD to be added to food products is prohibited. Until the [Food and Drug Administration (FDA)] rules that industrial hemp-derived CBD oil and CBD products can be used as a food or California makes a determination that they are safe to use for human and animal consumption, CBD products are not an approved food, food ingredient, food additive, or dietary supplement.”

According to CDPH, it took this position because:

“California incorporates federal law regarding food additives, dietary use products, food labeling, and good manufacturing practices for food. The Controlled Substances Act of 1970 classified all forms of cannabis as a Schedule I drug, making it illegal to grow it in the United States. Currently, the [FDA] has concluded that it is a prohibited act to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which tetrahydrocannabinol (THC) or CBD has been added. This is regardless of the source of the CBD – derived from industrial hemp or cannabis.”

Funnily enough, even though the FDA still hasn’t changed its tune about CBD, California absolutely has with the passage of AB 45 (after a few failure to launch bills that were similar to AB 45). Therefore, the CDPH FAQ is no longer valid. For the major highlights of AB 45, see here for my last post on the topic.

The main curveball that will come out of AB 45 is the actual regulatory framework that eventually will issue from the CDPH– it’s at the department’s election to determine what regulations are necessary to implement AB 45.

In the event CDPH picks up the regulatory baton, the regulations that issue on the back of these statutes always contain some interesting checks, balances, and controls on licensees and registrants, and based on the DCC cannabis regulations, it makes me wonder if and how many regulatory barriers to entry CDPH might throw up when it comes to hemp-infused products and their sale and distributions. I can tell you now that we’ll very likely see regulations that fill in the blanks and details about testing, quality assurance, packaging, labeling, advertising, fees, and maybe even age restrictions around the purchase of certain hemp products, and there will very likely be an enumerated “prohibited products list” (in addition to what’s already in the statute) where hemp and other substances/products never shall meet.

In any event, we’ll be watching the CDPH as AB-45 officially rolls out.

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