AHPA updates Proposition 65 hemp industry guidance following passage of California AB 45

New law recognizes hemp derived products as foods, dietary supplements, and cosmetics

October 11, 2021

AHPA has published an update to its Guidance on California Proposition 65 and Hemp Products to recognize the impact of the passage of California AB 45 Industrial hemp products, which was signed into law by Governor Gavin Newsome on October 6, 2021. The AHPA document provides guidance to the hemp industry about the regulatory and liability implications of Proposition 65 for hemp and hemp-derived products, including cannabidiol (CBD), sold in the State of California. Following the passage of AB 45, certain hemp-derived products are now recognized as lawful foods, dietary supplements, and cosmetics, and may now be able to utilize Proposition 65's provision for naturally occurring constituents that are Proposition 65 listed chemicals, such as delta-9 tetrahydrocannabinol and β-myrcene. This provision recognizes that if a listed chemical is naturally occurring in a food, human consumption of that food does not constitute an “exposure” for the purposes of Proposition 65.

AHPA President Michael McGuffin presented on this topic during his recent participation on a panel titled “Implications of Prop. 65's Proposed Regulations Regarding Cannabis and THC Products” during the Prop65 Clearinghouse's Annual Conference held on September 27, 2021. He reviewed the history of the Office of Environmental health Hazard Assessment (OEHHA) practice of identifying in chemical listings the presence of naturally occurring constituents in various botanicals, such as those for pulegone and β-myrcene. He also noted the small number of instances in which private plaintiffs have seemingly ignored this provision and filed notices of violation for naturally occurring chemicals in foods products. In July 2021, two notices of violation were filed against products identified as “full spectrum CBD oil,” but these filings preceded the completion of the AB 45 legislative process.

Consumer goods sold in the State of California are generally subject to Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. The regulations place specific warning requirements on marketers of products sold in the State of California if the product contains chemicals listed by the State as carcinogens or reproductive toxicants. Failure to provide such warnings can result in action by the California Attorney General or by “any person in the public interest.”
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