It was just a few months ago that the state of California considered a bill that would have legalized the use of CBD for medical marijuana patients. But with a new governor on the way, that bill has been put on hold . Now, CBD pills and health products may be banned in the state.
A few years ago, CBD was completely legal in California. But in the past few months, several high profile companies have been hit with cease and desist letters from the state Attorney General’s office, in an attempt to shut down sales of CBD-infused products.
Although California has been at the forefront of legalizing marijuana, specifically cannabis under state law – I know, confusing – the state has also repeatedly failed to create a legal path for cannabis-derived products, including cannabidiol (CBD). Following the passage of the 2018 Farm Bill, the California Department of Public Health (CDPH) issued an FAQ titled FAQ – Industrial Hemp and Cannabidiol (CBD) in Food, which states that hemp, including CBD, cannot be added to any type of edible product, such as food, beverages, dietary supplements, or animal products. Interestingly, there was and is no state law prohibiting the addition of cannabis or CBD to finished products for human consumption. Instead, the CDPH adopted the position of the Federal Food and Drug Administration. Although not explicitly stated in the FAQ, a reading of it reveals that CDPH considers cannabis-derived food products to be adulterations within the meaning of the Sherman Food, Drug and Cosmetic Act (Sherman Act), the state equivalent of the Federal Food, Drug and Cosmetic Act (FDCA). Local agencies such as the Los Angeles County Department of Public Health subsequently issued their own statements explicitly labeling these products as adulterated, seemingly confirming the CDPH’s tacit position. As a result, without going through the proper regulatory process, the CDPH effectively banned cannabis-based edibles, and local authorities began enforcing the policy. At that time, the CDPH’s opinion on the legality of cannabis cosmetics was unclear. Under the Sherman Act, the state has the right to regulate cosmetics, so many interpreted the agency’s decision not to include this category of products in the FAQ as a tolerance toward them. In January 2021, the agency broke that assumption by quietly releasing a revised FAQ titled CDPH Information on industrial hemp (IH) derivatives, including cannabidiol (CBD). The one-sided FAQ begins with the FDA’s explicit statement that CBD is prohibited as a food additive (for human and animal consumption) or as a food ingredient, and then explicitly states that CBD is adulterated in foods and cosmetics. The FAQ says more specifically that: WHEREAS, the California Sherman Food and Drug Act provides that food (including beverages and pet food) is adulterated if it contains or contains unauthorized food additives, and that cosmetics (including lotions and ointments) are adulterated if they contain toxic or harmful substances that may cause harm to the user under the conditions of use prescribed on the label or in the advertisement for the cosmetic or under normal or customary conditions; and Hempseed hulls, hempseed protein and hempseed oil are the only components of hemp that have GRAS status and are approved for use in food. CBD derived from cannabis or any other source is currently not allowed in products regulated by the Division of Food and Drugs of the California Department of Public Health, including foods, pharmaceuticals, and cosmetics. (Underlining added). It is clear from this text that the CDPH now prohibits the sale in the state of cosmetics containing cannabis, except those containing GRAS-approved cannabis seed ingredients. This position is even more restrictive than the FDA’s position on this category of products. Overall, the agency seems intent on making life difficult for the cannabis industry. As I mentioned earlier, many states have wisely responded to the lack of federal regulation by enacting their own laws and regulations to regulate cannabis products and ensure that they are safe (i.e., not adulterated) for consumers. Unfortunately, California – the country’s largest economy – has decided to take a counterproductive approach by banning these products, despite their obvious presence and popularity in the state. This latest development is certainly bad for businesses that manufacture, sell and distribute cannabis products. The only hope is that California lawmakers will succeed in passing AB-45, which proposes legalizing a wide range of cannabis products. If the bill passes, the CDPH and other local agencies will finally have to regulate cannabis products and California consumers will be able to trust that the products they enjoy consuming are safe.