California based consumers looking to purchase hemp flower and other industrial hemp derived products have been met with a volley of "Don't ship to California" messages as of late. The reason: Assembly Bill 45.
Assembly Bill 45 ("AB 45"), which went into effect in October 2021, regulates products containing industrial hemp. Industrial hemp, as you may know, is defined as an agricultural product “of the plant Cannabis sativa L.,” which includes “any part of that plant, including the seeds of the plant and all derivatives, extracts, the resin extracted from any part of the plant, cannabinoids, isomers, acids, salts and salts of isomers, with a delta-9 tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis.
While AB 45 creates a relatively robust regulatory scheme for the manufacture, distribution, and sale of industrial hemp, it also prohibits the sale of inhalable hemp products in the state of California, that is, until the state Legislature devises a way to properly tax those products.
Though AB 45 has been in place for a few years now, it seemed to have little impact on the industry, until recently. On August 8, 2023, the Attorney General of California filed a complaint against nine companies for selling inhalable hemp products in California, in violation of AB 45, and for failing to include warnings required by Proposition 65 for all commercial industrial hemp products, and for engaging in unfair business practices.
The complaint, filed in Alameda County Superior Court, requests the court to block the sale of inhalable hemp products and all other industrial hemp products that do not contain appropriate legally sufficient Proposition 65 warnings and apply monetary damages and penalties for both violations committed during prior sales. The complaint alleges the following companies have violated AB 45, Proposition 65, and California Unfair Competition Law through the sale of these products:
G.E.T. Agriculture LTD (Tweedle Farms)
The Hempacco Company, Inc.
IHF Online LLC (Industrial Hemp Farms)
CHEEF Holdings (CHEEF Botanicals)
Eagle Moon Hemp, LLC
Eagle Moon Farm, LLC
EMH Wholesale, LLC
Berkshire CBD (Cannaflower)
Berkshire Farm Collective
The complaint leaves “Does 1 through 50”, allowing the AG to add defendants at a later date.
While the sale of inhalable industrial hemp products within California is prohibited, non-inhalable industrial hemp derived products can continue to flow within California as long as the requirements under AB 45 are met.