Although California has adopted one of the strongest medical and recreational marijuana programs (known as “hemp” programs), and despite the enactment of the Agriculture Improvement Act of 2018 (Farm Act 2018), the state does not appear to hold specific legislative meetings around the regulation and control of products derived from Hemp.
After the 2018 Farm Bill passed, state lawmakers tried to pass it AB-228, Which aims to forge a legal pathway for many of the hemp-derived digestible products in the state. While the bill made it too far, it eventually passed away at the end of the legislative session in part due to strong opposition.
In 2020, at the end of the legislative session, California lawmakers attempted to revive the issue with a filing AB-2028Which also failed to garner adequate support.
Then, on the eve of the new year, the state legislature presented a new bill to the Convention on Biological Diversity entitled, AB-45. Like previous bills, the goal of the AB-45 is to “legalize” a large number of hemp-derived products. AB-45 contains many of the concepts originally found in AB-228 but adds some clauses, which, although intended to reach a compromise with former opponents of AB-228’s predecessors, will surely encounter opposition from the cannabis industry.
Here is a high-level overview of some of the AB-45’s key provisions:
- Salad: The bill would give the California Department of Public Health (CDPH) regulatory authority over hemp-derived products, which the agency would need to review, if needed, once the Food and Drug Administration (FDA) previously developed a federal regulatory framework for these products. Despite the current lack of state regulations, the CDPH Issued the Common Questions adopted by the Food and Drug Administration Site Conventional foods and CBD-infused nutritional supplements are strictly prohibited, and as such, it has taken consistent enforcement action against manufacturers, distributors, and retailers within the country for these products.
- Legitimate products: “Industrial hemp products,” which are defined as foods, food additives, nutritional supplements, herbs and cosmetics for human or animal consumption, will not be considered illegal provided they meet specific requirements. For example, products will need a Certificate of Analysis (COA) stating that they contain no more than 0.3% of total THC and that they are derived from legal hemp.
- Banned products: The bill clarifies that cannabis derivatives cannot be added to medical devices, prescription drugs, products containing nicotine, tobacco, alcohol, or any other smokable product (including both smokable flower products and vaping products). This latter category is sure to be problematic for the industry, and the most controversial during the legislative session, as many companies already manufacture and sell smokable hemp products across the state.
- Tagging and Advertising:
- hashtag: The invoice contains fairly comprehensive labeling requirements that are largely in line with other countries’ requirements, including use of the label, a scanable barcode, website, or QR code associated with the COA of batch product by a lab An independent test that provides a wide range of information such as the concentration of the substance marketed and the expiration date.
- Advertising: In line with current FDA enforcement measures, manufacturers and retailers of hemp-derived products are strictly prohibited from making false health claims about the therapeutic values of their products.
- Age requirements: CDPH will have the ability to approve lifetime requirements to sell certain products. This is an interesting feature of the bill. The country has decided (so far) not to require the sale of all hemp-derived products to people over the age of 21 or 18. Instead, legislators are proposing to grant CDPH discretion on the matter on a product-by-product basis and on the basis of scientific research. However, the bill contains a clause that limits advertising to people under the age of 18.
- Registration requirements: The following actors must register with CDPH: (1) In-state manufacturers of hemp-derived products. (2) Manufacturers inside and outside the country of the raw hemp extract that will be pumped into the final products by the manufacturers inside the country; And (3) retailers of the raw hemp extract and finished products.
- Manufacturing requirements:
- Good Manufacturing Practices: Food processing facilities that manufacture products containing hemp derivatives will need to comply with good manufacturing practices as defined by California law, and will be prohibited from using hemp in food products or nutritional supplements unless they come from a state or county that has adopted the hemp production plan in accordance with the law. Federal and the concerned farmer is in good standing under the laws of his jurisdiction. This, again, is somewhat in line with most states’ regulations for hemp-derived products.
- Tests: Raw hemp extract must be tested to allow it to be used as an ingredient before it is incorporated into the product. The test must be completed by an independent testing laboratory. The CPA issued by the said laboratory shall show that the total THC concentration is less than 0.3% and any other requirements that the CDPH may adopt on this matter. For example, AB-45 states that CDPH “may regulate and restrict a maximum on the extract and may set a maximum amount of total THC concentration at the product level based on product shape, size, number of servings, the ratio of hemp to THC in the product or other factors depending on the need “.
AB-45 is in its infancy so amendments are likely to come, especially to provisions banning smokeless hemp products. It will be interesting to see how California handles its third attempt to regulate hemp-derived products, and hopefully, state lawmakers will finally succeed for the sake of California consumers. Until then, consumers and companies for hemp-derived products should remember that selling these products is still illegal in the state and that products in California are not explicitly regulated by the CDPH nor are they recognized as safe for human consumption.
Nathalie practices from Harris Bricken’s Portland office and focuses on the regulatory framework for hemp-derived CBD products (“hemp CBD”). It is an authority concerned with enforcing the Food and Drug Administration, Food, Drug and Cosmetic Act, and other laws and regulations related to hemp and hemp CBD products. It also advises local and international clients on selling, distributing, marketing, labeling, importing and exporting these products. Natalie talks a lot about these issues and has been featured in national media, including NPR. For two years in a row, Natalie has been named a “Rising Star” by Super Lawyers, an honor awarded to only 2.5% of qualified Oregon attorneys. Natalie is also a regular shareholder of her company Kana Lu Blog.