CBD: Marching Toward Legality and Equality in California

Since I reported in January (“CBD is Now Legal – Kind of, Sort Of”) that the march toward legalization of hemp-derived CBD following Congressional decriminalization in last December’s Farm Bill had hit a road bump at the FDA, forward momentum toward mainstreaming the “miracle” molecule has resumed at a quickened pace ever since.  In May, the FDA, which had declared CBD still to be illegal under its laws despite criminalization because CBD is a “drug,” held a public forum to receive input from the hemp industry and other stakeholders for a new high-level internal agency working group charged with exploring “pathways” toward legalization of hemp-derived CBD in the nation’s food supply.  Last month, the USDA, which has jurisdiction over the cultivation of hemp, announced that it would be accelerating its schedule for promulgation of a federal regulatory plan for hemp production from next year to next month, while states that have the option of developing their own regulatory plans or complying with the federal one continue to work on theirs.

Proceeding apace with these federal developments has been action at the state level to pave the way for the legal marketing and sale of CBD.  None has been more significant than in California, where CBD legislation is moving swiftly and with overwhelming support through the state legislature.  California, like some other states, has been hamstrung by the FDA’s restrictive position since it incorporates FDA law and policy into its own regulation of food and dietary supplements.  Only a change in state law could override that regulatory policy.       

That change appears to be coming, and fast.  On May 22, the California Assembly unanimously passed AB228, a bill that would allow the legal sale of food, food additives and dietary supplements containing CBD within the state.  Under the proposed law, a food, beverage, or cosmetic would not be considered adulterated by the inclusion of industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp.  If enacted, AB228 would end state prohibition on the sale of CBD products based on the federal Food, Drug and Cosmetics Act (or at least the FDA’s interpretation of the Act).  It also would end California’s attempts to enforce the ban, which have included state raids on warehouses and impoundment of CBD consumables.

Despite enforcement efforts, CBD products remain widely available in California.  Enactment of AB228 would recognize that “on the ground” reality and end enforcement of the ban completely, shifting enforcement priorities to compliance with manufacturing and quality standards and crackdowns on unscrupulous marketers making false CBD health claims.

Significantly, the bill also would allow CBD products to be sold not only in retail stores, but in licensed cannabis dispensaries along with marijuana, which became legal for recreational use in California at the start of 2018.  This would end the anomaly of state sanctioning in licensed outlets of the sale of the “THC” branch of the cannabis family that get’s people high, but not the hemp-derived CBD branch that has no psychoactive effect.

AB 228 is now in committee in the California Senate, with no date yet set or known for final action.  Given unanimous passage in the House and the heavily Democratic Senate, it will be surprising if it does not pass and become law this year.

Meanwhile, another California hemp bill, SB153, would mesh California law with the federal government’s and require the state agriculture department to submit a hemp cultivation plan to the USDA, as provided for in the Farm Bill.  It similarly passed the Senate without a nay vote and is now in Assembly committee.

As the New York Times has written, “With CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”  It also is hard to overstate the impact that legalization of CBD in California – the trendsetter of all things cultural in America – will have on other states as they move to formulate their own regulatory and legislative responses to popular demand for CBD in everything. It could even affect the urgency of the FDA’s so far methodical march toward federal legalization.  Let’s hope so.

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