California and Inhalable CBD Products

Last year, California passed into law AB-45, which paved the way for a regulated CBD market in the state. However, California flip-flopped on inhalable CBD products. Earlier CBD legislation would have allowed them, but then drafts of AB-45 prohibited them. Finally, we landed on an interesting compromise that made basically everyone unhappy. Today I’ll unpack that a bit further.

AB-45 states very clearly that both the manufacture and sale of inhalable CBD products in California is prohibited. Before I go any further, I should point out that “inhalable products” can include anything that people smoke: vaporizers, vape cartridges, smokable hemp, hemp cigars, etc.

For now, nobody can make or sell inhalable CBD products in California with one big exception: the state allows people to manufacture these products ONLY IF they are intended for sale in other states. Strange, right? California’s Department of Public Health (CDPH) has a separate registration for manufacturers of inhalable products for out-of-state sales, which I wrote about here.

All of this could change. AB-45 states clearly that the prohibition on in-state manufacture and sales will end if the state legislature passes a tax on inhalable products. Knowing California’s history on cannabis taxes, the taxes would be high if they come to pass. Also, if the legislature ever gets around to passing an inhalable CBD product tax law, the products will be highly regulated. For one, all existing testing and other requirements will apply to inhalable products. And in addition:

Inhalable CBD products could only be sold to persons over 21.
Inhalable CBD products could not contain:

Flavorings other than natural terpenes.
Polyethylene glycol (PEG).
Vitamin E acetate.
Medium chain triglycerides (MCT oil).
Squalene or squalane.
Any other substance that [CDPH] finds to be a danger to public health.

CDPH likely would develop additional regulations for inhalable CBD products and would certainly develop a new registration form.

As far as we can tell, there are no pieces of proposed legislation on inhalable CBD product taxes. Until that happens, the status quo remains and these products cannot be legally sold here. Given that we’re at the tail end of a legislative session, chances are that we won’t see movement until 2023. So stay tuned to the Canna Law Blog for more detail on California and inhalable CBD products.

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