On May 22, AB 228 (Aguiar-Curry) passed the California Assembly unanimously and is now on its way to the Senate where it will first be heard next month in the Senate Health Committee. If passed, the legislation would help resolve issues in the state involving hemp-derived products, including products containing cannabidiol (CBD), and pave the way for the California Department of Public Health (CDPH) to regulate the processing and sale of these products.
In July 2018, CDPH issued an FAQ asserting the agency’s position, consistent with the FDA, that hemp-derived CBD is not an approved food ingredient, food additive, or dietary supplement. The FAQ did not address CBD in cosmetics. In deferring to the FDA’s position on CBD, CDPH noted that until the FDA rules that industrial hemp-derived CBD oil and CBD products can be used as a food, or 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. Consequently, if AB 228 is passed, California will have made such a determination as referenced in the FAQ (i.e., CBD is safe to use for human and animal consumption), and the issue of including CBD as a food ingredient/additive or dietary supplement under California state law will be resolved.
In AB 228, the state, by declaring that food and cosmetics are not adulterated by the inclusion of hemp (including cannabinoids, extracts, or derivatives), essentially finds that hemp-derived products, including products containing CBD, are safe for human and animal consumption. That said, to ensure consumer safety, CDPH needs regulatory authority over processors of hemp like all other food manufacturers. Thus, we can anticipate further amendments to AB 228 once it arrives in the Senate.
In other California hemp news, on the same day AB 228 was unanimously voted out of the Assembly, SB 153 (Wilk) also passed out of the Senate without a “nay” vote. SB 153 principally conforms California’s hemp statute to the minimum requirements needed for a state hemp farming plan under the 2018 Farm Bill. Both of these bills are benefitting from a combined effort by their authors, industry advocates, government agencies, and the Governor’s office – a true testament to collaboration and coalition building.
Patrick Goggin is a Senior Attorney at Hoban Law Group. He has waged battle on the frontlines of industrial hemp and general cannabis reform for two decades. Earning an Environmental Law Certificate from Lewis and Clark Law School in Portland, Oregon, Mr. Goggin was admitted to the California Bar in 1996. Based in San Francisco, he served as co-counsel in the seminal HIA v. DEA cases in the early 2000s. Later, Mr. Goggin led the industry effort with Senator Mark Leno in 2013 to finally pass California’s Industrial Hemp Farming Act after three vetoes.
Ashley Simpson is of counsel to Hoban Law Group. Simpson received her law degree from Texas A&M University School of Law in 2011, where she was a member of the law review, and graduated magna cum laude from Texas Tech University in 2008 with a Bachelor of Arts in print journalism.
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