Cannabis Q&A: Why is smokable CBD not permitted under California’s new hemp laws?

November 15, 2021

Welcome to our Q&A with partner, Jennifer Gumer!

As a partner at CGL and our Regulatory and Compliance Practice Lead, Jennifer provides strategic counseling, practical advice, and expert advocacy to clients with production needs. As an Adjunct Professor of Law and Bioethics, she is uniquely qualified to handle all interactions with federal, state, and local regulators who oversee product development, manufacturing, and marketing activities, including the FDA and Local Hemp Regulators.


Why is smokable CBD not permitted under California’s new hemp laws?

A: Technically, smokable hemp was legalized by the AB-45. But the bill also requires a taxation framework to be implemented before smokable hemp sales can legally happen in California. 

While legal sales won’t happen in the near future, California hemp growers and manufacturers are able to start production for the purpose of out-of-state sales. This is a significant win for California hemp producers, as it allows for legal production. It’s also beneficial for consumers since this means that California-grown products will be available immediately once the tax framework has been carved out. 


What will happen once the inhalable hemp tax framework is implemented?

AB-45 outlines the regulations that will take effect once the “Legislature… establishes a tax on inhalable products and states the intent of the Legislature to fulfill the requirements of this section.”

These regulations are outlined in Article 10 of AB-45. They include: 

  • Consumers under 21 years of age should not be sold inhalable products. 
  • Inhalable products should not contain: 

(a) Flavorings other than natural terpenes.

(b) Polyethylene glycol (PEG).

(c) Vitamin E acetate.

(d) Medium chain triglycerides (MCT oil).

(e) Squalene or squalane.

(f) Any other substance that the department finds to be a danger to public health.

We anticipate that further regulations will be announced before or at the time the taxation framework is established. 


When will smokeable hemp be permitted in California?

The truth is: no one knows. AB-45 does not provide a timeframe for the tax to be introduced, so we’re at the mercy of the Legislature. Time will tell whether it’s a priority. At the time of writing this article, no bill had been introduced with the taxation framework.  


So, are there products that CBD hemp cannot be included in?

AB45 specifically bans the inclusion of industrial hemp in four products: 

  1. medical devices, 
  2. prescription drugs, 
  3. products containing nicotine or tobacco, and 
  4. alcoholic beverages.


This ban exists unless the inclusion of the CBD is otherwise permitted by the federal Food and Drug Administration (FDA). The Bill also permits the Department to add further products to this list at a later date, if the products are deemed to pose a risk to human or animal health. 

For more information about the new bill permitting CBD hemp to be included in dietary supplements, cosmetics, food, beverages, and pet food, read our recent blog post on the topic here.


If you need assistance navigating hemp compliance in California, reach out! We are happy to help.


The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between CGL and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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