Proposed California Legislation May Allow Hemp CBD in Foods

california hemp cbd food ab 228
 Keep your fingers crossed for AB 228.

On January 17, 2019, California Assembly Member Cecilia M. Aguiar-Curry kept her promise and introduced a piece of hemp legislation, AB 228.  This bill is aimed at paving the way for adding industrial hemp derived cannabidiol (“Hemp CBD”) to foods, beverages, and cosmetics. The text of AB 228 is relatively short and would add the following two provisions to the California Health and Safety Code which contain provisions of the Sherman Food, Drug, and Cosmetic Laws (the “Sherman Laws”):

110611.  A food or beverage is not adulterated by the inclusion of industrial hemp products, including cannabidiol derived from industrial hemp. The sale of food or beverages that include industrial hemp products or cannabidiol derived from industrial hemp shall not be restricted or prohibited based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.

111691.  A cosmetic is not adulterated because of the fact that it includes industrial hemp products, including cannabidiol derived from industrial hemp. The sale of cosmetics that include industrial hemp products or cannabidiol derived from industrial hemp shall not be restricted or prohibited based solely on the inclusion of industrial hemp products or cannabidiol derived from industrial hemp.

AB 228 thus narrowly targets California regulators’ ability to penalize companies for selling Hemp CBD beverages or foods on the grounds that they are “adulterated” under California law. This is an interesting piece of legislation, as the biggest major legal roadblock to selling Hemp CBD foods in California is the California Department of Public Health’s (“CDPH”) Hemp CBD FAQs, which don’t in fact claim that Hemp CBD makes foods or beverages “adulterated” (and says nothing about cosmetics). The only citation in the FAQs to the Sherman Laws is for the definition of foods (see footnote 1). That said, the Los Angeles Department of Public Health will soon begin taking the position that Hemp CBD foods and beverages are “adulterated” and issuing penalties based on that position.

If AB 228 becomes law, it will take the legs out from under one of the major arguments that could be used against Hemp CBD food products. The law wouldn’t change the federal Food and Drug Administration’s position that Hemp CBD is unlawful in foods, and so it will be interesting to see how California cannabis regulators treat Hemp CBD in the wake of AB 228 passing (if it does).

Ultimately, AB 228 isn’t perfect, but it’s a step in the right direction. Stay tuned to the Canna Law Blog for more updates on this and everything else Hemp CBD.

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