Categories
BLOG

is cbd legal in california

CBD Oil in California: Current Laws (2020)

Disclaimer: All of the information in this guide is based on our own research into the topic. We have done our best to use accurate and up-to-date information from respected and credible resources. However, we cannot claim to be a legal authority, and none of the following information should be taken as legal advice.

CBD Oil

CBD Gummies

CBD Cream

CBD Capsules

A Guide to CBD in California

  • Purchasing and possessing CBD is legal in California.
  • Retailers do not need any special licensing to sell CBD products.
  • Infusing food and beverages with CBD is illegal in California.
  • There are currently few if any regulations for farmers, processors and retailers of CBD.
  • Consumer protections are minimal when buying CBD from a brick-and-mortar shop.

Is CBD Oil Legal in California?

People all over the country are interested in trying CBD, for an array of reasons, and you can buy CBD almost anywhere despite CBD’s legal gray area. Most people don’t want to break the law, however, and they may be hesitant to give CBD a try because legislation in their state is confusing.

With its liberal marijuana laws, you would think that California would be one of the few states where people feel comfortable diving right in; however, the state’s focus on the marijuana industry has led to some of the murkiest laws in the country regarding hemp-derived CBD.

In order to understand why, let’s do a quick review of what has been happening in federal legislation over the last few years. The 2018 Farm Bill made the growing and processing of industrial hemp legal, which took CBD off the Drug Enforcement Agency’s controlled-substance list.

This gave states the option to work with the USDA to devise their own hemp-growing programs. Authority over the regulation of processed CBD went to the Food and Drug Administration.

The CBD industry immediately blew up, and consumers started buying products faster than supply could keep pace. New companies cropped up, taking advantage of an unregulated new market.

The FDA, unprepared to adopt clear guidelines, stated that CBD was not approved for use as a supplement, food additive or curative, but the agency has only sporadically enforced these rules. It is essentially up to the states to ensure consumer protections, creating confusion among consumers and law-enforcement personnel alike.

Are There CBD Laws in California?

Though it may seem counterintuitive, the prosperous marijuana industry is causing California legislators to lean on federal guidelines in their regulatory response to an exploding hemp-derived CBD market. One major concern is differentiating which products are marijuana-derived and which are hemp-derived.

Another issue is that those in the marijuana industry are fighting for hemp to be subject to the same stringent safety guidelines as marijuana. This ensures that competition is fair and consumers are protected.

A couple of bills have been introduced that would allow for more leniency when it comes to selling CBD in California, but none have provided satisfactory protections for consumers.

As of right now, retailers selling CBD are completely unregulated, except with regard to adding CBD to food and beverages, which has been outlawed. Adults can legally buy CBD in any form.

CBD in California: Understanding Different Types of CBD Products

CBD Oil

If you want your CBD to take effect quickly, CBD oil is the best option. Penguin CBD’s oil is pure CBD suspended in MCT oil for maximum absorption. It comes in multiple flavors, and in three concentrations so you have complete control over just how much you get in each dropperful.

Hold it under your tongue so it takes effect in as little as 20 minutes, or add it to your food or beverages for a boost in your day.

CBD Oil

Our CBD oil is made with the best Oregon grown hemp. Comes in mint, citrus, natural, strawberry and cookies & cream flavors.

CBD Capsules

People love Penguin’s CBD capsules because 10mg is the perfect dose to control exactly how much CBD you get. You can take one capsule at any point in your day, or you can take a few for a little something more.

They are convenient for travel, and you don’t have to worry about messes and spills when you toss a bottle into your bag. Be sure to keep an emergency supply with you wherever you are.

CBD Capsules

Convenient, discreet and travel-ready, our CBD capsules can be taken anywhere with ease. Each capsule contains 10mg of our broad-spectrum hemp extract suspended in MCT oil.

CBD Gummies

Want to add some fun to your chill? Try CBD gummies for a treat that will wake up your taste buds. Customers love Penguin CBD’s tart and sweet CBD gummies because they are bright and cheerful and have just the right texture.

Coated in sweet-and-sour sugar, packed with 10mg of CBD each and safe whether you’re eating just one or a handful, these are great for an afternoon or bedtime snack to satisfy your craving.

CBD Gummies

Made with the purest CBD isolate, our CBD gummy worms are a treat for your taste buds. Every container contains 30 individual worms, with each one packing 10mg of CBD.

CBD Cream

Penguin’s CBD cream smoothes and softens your skin while delivering a dose of our broad-spectrum CBD. Just apply a dab wherever you need it, and our CBD cream will lock in moisture and help boost your glow from the inside out.

CBD Cream

Our CBD cream is a luxurious cream that’s silky smooth and cooling upon contact. Its terpene rich formula is designed to be absorbed quickly.

Industrial Hemp in California

The laws surrounding industrial hemp in California are muddled and perplexing. There are no state regulations regarding commercial hemp farming outside of the general commercial agricultural statutes set forth by the California Department of Food and Agriculture. Growers of industrial hemp are required to register with and report to their counties, which set forth growing guidelines and enforcement.

You can probably see where the problems lie. With no centralized regulatory and enforcement body, the confusion is rampant. The state is currently working out a plan with the USDA to run its own Hemp Pilot Program, and therefore the USDA is also uninvolved in any sort of oversight.

The situation leaves the door wide open for CBD companies to disregard safe growing practices. Many are using hemp that has been grown in contaminated soil, irrigated with polluted water and sprayed with toxic chemicals to make their CBD.

There are few safeguards in place to protect consumers or the environment, and enforcing them is up to individual counties that may not have the resources necessary to keep tabs on growers.

Penguin CBD takes great care to ensure that the hemp used to make all of our CBD products is grown organically with our partner farms in Oregon.

The climate there is ideal for producing hemp with all the right terpenes to keep you feeling your best, ready to handle whatever comes your way. The farms where we source our hemp are regularly inspected, and the hemp is constantly tested so we can be confident that every batch meets our high standards.

Can I Purchase CBD Online in California?

Purchasing CBD

Not only can you purchase CBD online in California; you probably should. While there may be reputable companies operating in the state—and even some super-luxury brands—there are currently no protections in place for consumers of CBD in California.

You can buy CBD just about anywhere, and retailers do not need a special license. When you aren’t able to do appropriate research, you should note that packaging may be mislabeled and products could be dangerous.

Shopping online might seem like a scary prospect because you cannot physically see the product you are investing in, but it is actually much safer because of the amount of information you have access to.

Always insist on seeing third-party lab results for your product before making a purchase (Penguin CBD’s lab results accompany each product on our website). When you shop online, you can even take it a step further and research the lab itself.

Furthermore, you can look for customer reviews to see what others are saying about the brand you are considering.

CBD Oil in California

In addition to the problems with hemp farming in California, the total lack of oversight with CBD companies makes it easy to take advantage of consumer enthusiasm about a product meant to help people feel good.

Companies often mislabel products with inaccurate information about CBD or THC concentrations, which can lead to consumers buying an ineffective product or inadvertently failing a drug screening.

Even when companies are not purposefully deceitful in their product advertising, negligence can put consumers at risk. Hemp is a bioaccumulator, which means it absorbs everything in its environment.

Each batch of CBD should be tested by a third-party lab to ensure that it does not have any toxic chemical residue or heavy metals. Your product should have a barcode or a QR box that you can scan for results, or the information should be easy to find on the company’s website.

Penguin

When determining which companies make the best CBD for your needs, it is imperative to check the third-party lab results for your products.

It also helps to see what others are saying about the company. Penguin CBD’s customers love our products, and we are the top pick for publications like Merry Jane, The Daily Beast, Venture Beat and The Observer. From our CBD oil to our CBD gummies, our products are made with your satisfaction in mind.

We start with organic hemp cultivated right here in the United States. Then we use our state-of-the-art CO2 extraction process, which never requires any additives or solvents and gives us total control over our results every time.

Before our products get shipped to you, we send each batch off to our third-party independent labs to confirm the purity and potency. That way, we know that you are getting the best of the best every single time you order from us.

Final Thoughts About CBD in California

California’s CBD laws are murky and confusing, but one thing is certain: It is perfectly legal to purchase and possess CBD in the state.

The problem is with consumer protections. While Health Department agents are cracking down on retailers and cafés selling food and beverages infused with CBD, there are no licensing or reporting requirements for selling other CBD products.

In addition to the lack of regulation with sales of CBD, there is no centralized effort to oversee or enforce any guidelines regarding the cultivation of hemp in California. This is a complicated issue due to the booming marijuana industry, in addition to the fact that hemp can be grown for purposes outside of CBD. This makes it difficult for the state to pass legislation that protects consumers on any level, from farm to sale.

When you buy products from Penguin CBD, you can be sure that everything we do is transparent and easy to navigate. Customers give us rave reviews because our products are effective and trustworthy every time. Our hemp is organically grown and lab results are easy to find, and we make your happiness with our products our top priority.

Want to buy CBD oil in California? Here are the most up to date guidelines.

Is Hemp CBD Really Unlawful in California?

Dozens of times per month, I am asked by clients and potential clients whether hemp-derived cannabidiol (“Hemp CBD”) products are legal in California. With almost any other product, I can give an easy “yes” or “no” answer. But with Hemp CBD, my answer usually takes five to ten minutes to explain and ultimately ends with “there is no clear answer, all of this could change dramatically in the next few months, and all of this will change in the next year”. Given the perplexing state of Hemp CBD laws in this state, I thought it might help to try to answer this all-too-common question here as well.

To really understand the legal status of Hemp CBD in California, one should understand the state’s stance on “cannabis”. The term “cannabis” is a legally defined term that means the Cannabis sativa L. plant with more than .3% delta-9 THC and excludes hemp, which is legally defined as the Cannabis sativa L. plant with .3% or less delta-9 THC. Cannabidiol can be derived from either cannabis (in which case it is generally legal and may be sold through the licensed cannabis chain), or hemp (in which case the law is completely unclear in many cases). If this all seems a bit confusing, it is. I won’t even try to get into the different terminology that the federal government uses.

The state cannabis agencies, ironically, prohibit licensed commercial cannabis businesses from using Hemp CBD in manufactured cannabis products or selling Hemp CBD products in licensed cannabis retail stores. Beyond that, the state has not adopted a single law that expressly outlaws Hemp CBD processing, sale, or consumption (though some cities or counties in the state may actually have laws prohibiting such activities). Instead, about a year and a half ago, the California Department of Public Health’s Food and Drug Branch (“CDPH”) released an FAQ document which stated that in spite of the fact that cannabis derivatives may be lawfully added to edibles, Hemp CBD could not legally be added to foods (including beverages and animal foods) or dietary supplements. The FAQ says nothing about many other products, such as cosmetics, smokeable hemp, or Hemp CBD vapes.

These FAQs, notably, are based expressly on federal law, and do not explicitly cite California law to support CDPH’s attempted ban on Hemp CBD foods. There are really two main arguments in the FAQs for why Hemp CBD foods are unlawful:

  1. Hemp was a Schedule I (illegal) drug under the Controlled Substances Act. This argument is no longer valid, since the Controlled Substances Act (“CSA”) was amended by the 2018 Farm Bill to carve hemp out from the CSA. But either way, it is a bit odd that the CDPH was attempting to ban a substance based on its placement in the CSA, when the CDPH is also responsible for licensing cannabis manufacturers, where cannabis is a Schedule I narcotic.
  2. The FDA did not allow Hemp CBD to be added to foods. This is still the case, as the FDA recently made clear. But again, it is interesting that the CDPH is relying on a federal agency’s position when it comes to Hemp CBD, but not when it comes to cannabis.

While the FAQs really only cite federal law, the CDPH has apparently been threatening enforcement actions and even pulling products under a California law that most people in the state probably aren’t aware of: the California Sherman Food, Drug, & Cosmetic Law. The Sherman Law is in many respects similar to the federal Food, Drug and Cosmetic Act (which is the basis for the FDA’s power over Hemp CBD). Notably, the Sherman Law prohibits selling “adulterated” food. There are numerous different definitions for when food is “adulterated”, but generally it means that it is poisonous, harmful, or unsafe. Though CDPH has made no public fining that Hemp CBD is actually “adulterated”, it has apparently been using this provision as the basis for its enforcement actions. In fact, the Los Angeles Department of Public Health, which to some extent acts as a local enforcement arm for CDPH policies, issued guidance stating that Hemp CBD was an adulterant.

In response to the claim that Hemp CBD was an adulterant, California Assembly Member Aguiar-Curry introduced AB-228 in early 2019, which would have expressly found that Hemp CBD was not an adulterant. In fact, when I started writing about AB-228 back in January, that’s basically all the bill did, though subsequent amendments would have created a much more robust regulatory framework for Hemp CBD. Unfortunately, the bill stalled out in committee a few months ago, so for now there will be no progress on that front. But we are basically guaranteed to see a revival of the bill in some form or another in the 2020 legislative session.

Also interestingly, there appears to have been no public challenge in the courts over whether Hemp CBD actually even qualifies as an “adulterant”. It is certainly possible that over the next few months, we could see a company that was subject to CDPH or local department of health enforcement sue and claim that Hemp CBD is not an “adulterant”. It’s possible that the CDPH would cite the FDA’s assertions that Hemp CBD could have some toxicity issues, but whether those assertions are sufficient for a state to take enforcement actions under state law is not so clear.

Ultimately, there is no great answer to the question “is Hemp CBD really unlawful in California?”, but there are some good pieces of information to consider:

  • While there is no state law that bans Hemp CBD processing, sale, or consumption outside of the licensed cannabis chain, the CDPH or local departments of health may initiate enforcement actions for foods, beverages, animal products, or dietary supplements under federal authority or the Sherman Law.
  • There are a number of products that the CDPH has not publicly identified as unlawful, such as cosmetics. The CDPH has jurisdiction over cosmetics under the Sherman Law, and could take the same position that they are not lawful. But they did not do so in the FAQ. It’s also possible that they could take a similar position to the FDA, which has been much less aggressive when it comes to cosmetics unless they make medical claims.
  • The law is subject to change quickly. As we live in a state where a couple-page-long FAQ document, rather than a law or regulation, can support enforcement actions against an entire industry, it’s entirely possible that the CDPH or another agency could reverse course or take an entirely new position at the drop of a dime.
  • We are pretty much certain that the law will change dramatically in the longer term. The FDA will issue regulations for Hemp CBD (though that may take time), and it’s highly likely that the California legislature will work on new Hemp CBD legislation in 2020.

So stay tuned to the Canna Law Blog as we continue to cover developments on the Hemp CBD front in California.

Griffen Thorne

Griffen is an attorney in Harris Bricken’s Los Angeles office, where he focuses his practice on corporate, transactional, intellectual property, data security, regulatory, and litigation matters across a wide variety of domestic and international industries. As part of Harris Bricken’s corporate cannabis team, Griffen works closely with cannabis and hemp…

Is Hemp CBD Really Unlawful in California? Dozens of times per month, I am asked by clients and potential clients whether hemp-derived cannabidiol (“Hemp CBD”) products are legal in California.