Assembly Bill 228 is a promising piece of legislation that could soon bring an end to California’s prohibition on adding hemp-derived CBD to foods, beverages, and cosmetics.  The bill, in its current form, would add two provisions to the California Health and Safety Code clarifying that food, beverages, and cosmetics are “not adulterated by the inclusion of industrial hemp, as defined in Section 11018.5, or cannabinoids, extracts, or derivatives from industrial hemp.”  The provisions would further provide that such items “that include industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp shall not be restricted or prohibited based solely on the inclusion of industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp.”

AB 228 stands in direct contrast to the California Department of Public Health’s (“CDPH”) current policies.  As we wrote about here, in July 2018, CDPH released a set of FAQs that included a summary of the agency’s position on CBD being added to foods:

Until [1] the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food or [2] California makes a determination that they are safe to use for human and animal consumption, CBD products are not an approved food, food ingredient, food additive, or dietary supplement.

Neither of these thresholds have been met: The FDA’s position is still that hemp-derived CBD cannot be used as a food, and AB 228, as amended, does not explicitly state that hemp-derived CBD products are safe to use for human and animal consumption.  Further, the CA bill does not list dosage thresholds for use in any product.

Despite this official position, CDPH’s FAQ is not law, and it has not been systematically enforced.  While hemp CBD products are widely available in California, passage of AB 228 seems likely to expand that state’s market even further by clarifying and sanctioning a pathway to market.  While FDA retains jurisdiction over foods transported in interstate commerce, the size of California’s economy and the number of states that currently allow CBD in foods is pushing toward critical mass and geographic distribution, potentially making FDA’s role in regulating this issue even more complex.

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