CBD Legality in California - AB 228

CBD Legality in CA - AB 228 Would Create Clear Regulations and Allow Cannabis Businesses to Participate in the CBD Market
A bill to regulate CBD in California and allow for California cannabis companies to legally produce and sell CBD products, including food and beverages, has passed the California Assembly and is being considered by the Senate. AB 228 would also create a much needed regulatory framework for CBD products within California. The bill, authored by Ceclia Aguiar-Curry would explicitly permit the sale of hemp-derived CBD in foods, beverages and cosmetics. Currently in California, CBD products like foods and beverages, which fall under FDA jurisdiction, are prohibited and have been subject to enforcement from the Department of Public Health. Despite these restrictions, CBD products abound and even within the CBD industry, there is confusion about which products are legal for interstate commerce and which are not. 

While The Farm Bill made a narrow group of hemp-derived products legal, it explicitly deferred product jurisdiction to the FDA and required compliance with state-hemp laws. Because CBD is an active ingredient in an FDA approved drug (Epidiolex), it is unlawful to introduce CBD into food or to market it as a dietary supplement. The FDA is in the process of issuing guidance on CBD and has created a working group to explore how CBD products can be sold legally. The FDA completed a series of public hearings on May 31. The CPDH (California Department of Public Health) has oversight authority over food additives, dietary use products, food labeling, and good manufacturing practices for food in California and has issued thirteen notices of violations and seven voluntary condemnation and destruction letters to California CBD companies in 2019.

According to Assemblymember Aguiar-Curry, “The State already allows the manufacturing and sale of cannabis products (including edibles); however, the use of industrial hemp as the source of CBD is still prohibited. AB 228 clarifies that food, drinks, and cosmetics that contain hemp-derived CBD are legal for sale in California. Many people have been purchasing hemp-derived CBD products at their local natural foods shops, fitness centers, and health stores for some time. In fact, seniors are a significant portion of the people choosing to use hemp CBD. Consumers, for many different reasons including those recovering from substance addiction, want legal access to these products. AB 228 is an opportunity to make it easier for citizens to access these non-intoxicating, alternative products.”

AB 228 would allow cannabis businesses to produce and sell CBD products, and require testing and CoAs for CBD products on the market

AB 228 would allow cannabis businesses to produce and sell CBD products, and require testing and CoAs for CBD products on the market

AB 228 would clarify and declare that foods, beverages, and cosmetics that include hemp-derived cannabinoids are not considered adulterated products. Importantly for cannabis businesses licensed in California, it would also allow a licensed entity to cultivate, manufacture, distribute and sell hemp-derived CBD products. Under current law, the MAUCRSA distinguishes between cannabis and hemp and explicitly states that cannabis licensees are restricted to working with cannabis-derived products, rather than hemp. The current framework allows for commercial cannabis businesses to sell CBD products derived from cannabis. Similar to the state’s cannabis regulations, AB 228 would require CBD products sold to undergo registration, third party testing, Certificate of Analysis (CoA) labelling, and source their products from a licensed supply chain. 

AB 228 - possibly a new CBD regulatory framework for California

AB 228 - possibly a new CBD regulatory framework for California

Proponents of the bill argue that California could miss out on the CBD market if it does not create a clear regulatory framework for CBD products. California, while one of the more progressive states when it comes to commercial cannabis, has been slow to regulate CBD products . The bill has passed the Assembly and is currently working its way through the Senate, and would need to be signed into law by Governor Newsom. If the bill becomes law it could create significant changes in the California cannabis market as well as the numerous CBD companies throughout the state. Stay tuned for further updates. 

For more on CBD, check out: