Earlier this year, California’s new CBD labeling requirements became effective under a bill that legalized the inclusion of hemp cannabidiol in food, dietary supplements, cosmetics and beverages. The trade of cannabis CBD is allowed in California’s licensed dispensaries, but Assembly Bill 45 opened the state to the hemp CBD market worth about $2 billion.
However, the CBD label requirements that apply to products made after January 04, 2022, in the bill will possibly make unexpected issues. Why? Because the FDCA act pre-empts non-identical labeling laws in California, which renders those ineffective. AB 45 and the FDCA are unlike in many respects. Therefore, FDCA pre-emption might create hurdles for private plaintiffs and the government that seek to enforce the requirements sometimes and may increase the susceptibility of cannabidiol companies to labeling lawsuits otherwise.
Here, we will discuss many things, including some of the key provisions in AB 45 and the FDCA that address food labeling.
The FDCA And Assembly Bill 45
Both regulate how companies must label food items that contain cannabidiol. AB 45 makes a new statutory regime that applies to CBD hemp derivatives in California as well as stipulates how companies must label and test those products. The FDCA is the US federal law governing food labeling, which includes labeling for beverages, gummies, and chocolate with CBD as an additive.
As a piece of federal legislation, the FDCA keeps states from setting requirements for nutritional labeling for food items that are not the same as those established in that law. That means no US state may indirectly or directly establish requirements for the process of labeling food in a way that is unidentical to the US federal requirements. It can make the litigants able to claim that the requirements in AB 45 can be not only pre-empted but also without effect when they are unidentical to the FDCA’s requirements.
Differences In The Requirements Of Both Law s
AB 45’s requirements are without effect so much so that those are not the same as the FDCA’s requirements. Therefore, it is worth noting where the laws differ. These are different laws in many respects, including the following.
- The laws require CBD manufacturers to list different items on labels
- The laws necessitate different standards of testing for labeled products
Final Thoughts
Thanks to its interplay with the other law, AB 45 allows for lawsuits to occur over cannabidiol product labels. Thus, when litigation starts to emerge, it would be significant to monitor in what way the court treats the consequent pre-emption issues.