While California led the charge to legalize marijuana, more precisely defined as “cannabis” under state law — I know, it’s confusing — the state has also repeatedly failed to forge a legal path for hemp-derived products, including cannabidiol (CBD).
Following the passage of the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), the California Department of Public Health (CDPH) released an FAQ entitled, “FAQ – Industrial Hemp and Cannabidiol (CBD) in Food Products” (emphasis added by the CDPH), which provided that hemp, including CBD, could not be added to any kind of ingestible product like foods, beverages, dietary supplements, or animal products. Interestingly enough, there wasn’t, and still isn’t, any state law that actually prohibits adding hemp or CBD to finished products intended for human consumption. Instead, the CDPH adopted the federal FDA position.
Although the FAQ did not expressly say so, it was clear from its reading that the CDPH treated hemp-derived ingestible products adulterated under the state’s Sherman Food, Drug, and Cosmetic Law (the Sherman Law), the state equivalent of the federal Food, Drug and Cosmetic Act (FDCA). In fact, local agencies, like the Los Angeles County Department of Public Health, later issued their own statements, which expressly categorized these products as adulterated, ostensibly confirming the CDPH’s unexpressed position.
Therefore, without going through the proper rule-making process, the CDPH effectively banned hemp-derived consumables, a policy that local agencies proceeded to enforce.
At that point, it was unclear where the CDPH stood on the legality of hemp-derived cosmetics. Under the Sherman Law, the state has the authority to regulate cosmetics, thus many interpreted the agency’s decision not to address this category of products in the FAQ to mean it tolerated them.
Then in January 2021, the agency shattered this assumption when it quietly issued a revised FAQ, entitled “CDPH Information on Industrial Hemp (IH) Derivatives Including Cannabidiol (CBD)”. The one-page FAQ starts out by expressly adopting the FDA’s position banning CBD as a food additive (for human and pet consumption) or dietary ingredients, then goes on to expressly state that CBD is an adulterant in food and cosmetics. Specifically, the FAQ provides that:
California’s Sherman Food and Drug Law provides that any food (which includes beverages and pet food) is adulterated if it is, bears, or contains any food additive that is unapproved, and that a cosmetic (which includes lotion and salves) is adulterated if it bears or contains any poisonous or deleterious substance that may render it injurious to users under the conditions of use prescribed in the labeling or advertisement of the cosmetic, or under conditions of use as are customary or usual.
Hulled hemp seed, hemp seed protein, and hemp seed oil are the only components of hemp that are GRAS and allowed in food. CBD derived from hemp or any other source is currently not allowed in any of the items regulated by the Food and Drug Branch of the California Department of Public Health, including foods, drugs, and cosmetics.
(Emphasis added).
This language makes it abundantly clear that the CDPH now bans hemp-infused cosmetics sold in the state, except for those infused with hemp…
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