Our California hemp lawyers have been receiving pummeled with queries about the legality of industrial hemp derived cannabidiol (“Hemp CBD”) ever due to the fact the 2018 Farm Bill was signed in January (and specifically due to the fact our current hemp and Hemp CBD webinar). A single of the most frequent queries we get is no matter if CBD is a lawful additive in foods.
The answer is normally no based on the state in which Hemp CBD meals goods will be sold. At a baseline, there has been guidance from the federal Meals and Drug Administration (“FDA”) which says that Hemp CBD can not be added to foods. Some states have taken an aggressive strategy to enforcement, although other folks haven’t. A single of the states with a clearer position is California. The California Division of Public Overall health (“CDPH”), in its now infamous Hemp CBD FAQs, took the position that Hemp CBD could NOT be added to foods—and this position was notably primarily based on federal law (which now has been changed by way of the 2018 Farm Bill) and the FDA’s position.
Back in January, I wrote about a piece of California legislation that had just been introduced, AB-228, which was aimed at paving the way for adding Hemp CBD to foods, beverages, and cosmetics. I wrote that AB-228 didn’t go pretty far sufficient beneath California law to let CBD, and would have no impact on the FDA’s position—so eventually it does not appear like that version of AB-228 would definitely adjust extremely a lot in California.
On March 13, 2019, AB-228 got some nicely-necessary amendments which place the law a lot closer to basically permitting Hemp CBD to be integrated in meals goods. Of equal value, the amendments may possibly open up the manufacture and sale of goods which include Hemp CBD in the licensed cannabis chain, which is a 1st for licensed cannabis providers in the Golden State.
CBD in Foods, Beverages, and Cosmetics
AB-228’s initial text would have conclusively established that meals, beverages, and cosmetics are not “adulterated” merely by which includes Hemp CBD. As I noted back in January, the largest big legal roadblock to promoting Hemp CBD foods in California was the FAQs, which do not in reality claim that Hemp CBD tends to make foods or beverages “adulterated” (and say absolutely nothing about cosmetics). The reference to becoming “adulterated” came from state law which was not even the basis for the FAQs.
The revised text of AB-228 goes a lot additional. Not only would the bill conclude that Hemp CBD foods and beverages are not adulterated, but it would also come across that foods and beverages containing industrial hemp or Hemp CBD are protected for human and animal consumption. The bill would notably also state:
The sale of meals or beverages that consist of hemp or cannabinoids, extracts, or derivatives from industrial hemp shall not be restricted or prohibited primarily based solely on the inclusion of industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp.
Comparable provisions would also be integrated for cosmetics.
The modifications to AB-228 would hence come a lot closer to legalizing Hemp CBD in foods and beverages beneath California law. But once more, the FDA has nonetheless taken the position that Hemp CBD in foods is unlawful, and the CDPH’s FAQs are primarily based on the FDA’s position. It is not clear just however no matter if the CDPH would reverse its position if this law had been passed, or no matter if it would stick to its guns. Regardless, this is a big step forward for Hemp CBD suppliers and sellers in California.
As critical as adding CBD to foods, AB-228 could let them in the licensed cannabis market place. Section 1 of the law would primarily add a section to the Medicinal and Adult-Use Cannabis Recreation and Security Act (“MAUCRSA”) as follows:
(a) This division does not prohibit an entity licensed pursuant to its provisions from cultivating, manufacturing, distributing, or promoting goods that include industrial hemp, as defined in Section 11018.five of the Overall health and Security Code, or cannabinoids, extracts, or derivatives from industrial hemp.
(b) A item containing industrial hemp-derived tetrahydrocannabinol (THC) in concentrations above .three % by item weight is topic to this division.
What this amendment would do is open up the doors for licensed cannabis providers to use industrial hemp plants and derivatives to manufacture and sell a host of CBD goods that would otherwise be unlawful. This is a large adjust and may possibly lead to the sale or addition of Hemp CBD in the licensed cannabis market place, which to date has been prohibited.