California’s Plan for Changes in Federal CBD Law

Canna Law Group/January 27, 2018/Alison Malsbury

Earlier this month, the California Legislature introduced Assembly Bill 710, which will amend certain sections of the Business and Professions Code and the Health and Safety Code to account for any future changes in federal law regarding cannabidiol (CBD). The purpose of this bill is to ensure that patients are able to obtain access to CBD as a medical treatment as soon as federal law makes it available.

Under existing California state law, and pursuant to the California Uniform Controlled Substances Act, controlled substances are placed into one of five designated schedules, with the most restrictive limitations placed on controlled substances in Schedule I, and the least restrictive limitations placed on controlled substances in Schedule V. Cannabis, despite the passage of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), is still on Schedule I in California. Because CBD is a compound contained in cannabis, it is likewise designated as Schedule I.

Because of this designation, the prescription, furnishing, possession, sale, and use of CBD is restricted by existing law. AB 710 would, if one of certain specified changes in federal law regarding CBD occurs, deem a physician, pharmacist, or other authorized healing arts licensee who prescribes, furnishes, or dispenses a product composed of CBD in accordance with federal law, to be in compliance with state law governing those acts. And upon the effective date of a change in federal law regarding CBD, the prescription, furnishing, dispensing, transfer, transportation, possession, or use of CBD products in accordance with federal law would be for a legitimate medical purpose, and therefore authorized pursuant to state law.

Currently, the cultivation, processing, and sale of medicinal and adult-use cannabis in California, including CBD, is regulated by the MAUCRSA. AB 710 would expressly exclude from regulation under the MAUCRSA any medicinal product composed of CBD that has been approved by the federal Food and Drug Administration (FDA) and either placed on a schedule of the federal Controlled Substances Act (CSA) other than Schedule I, or exempted from one or more provisions of the MAUCRSA.

AB 710 is short and sweet:

SECTION 1. The Legislature finds and declares that both children and adults with epilepsy are in desperate need of new treatment options and that cannabidiol has shown potential as an effective treatments option. If federal laws prohibiting the prescription of medications composed of cannabidiol are repealed or if an exception from the general prohibition is enacted permitting the prescription of drugs composed of cannabidiol, patients should have rapid access to this treatment option. The availability of this new prescription medication is intended to augment, not to restrict or otherwise amend, other cannabinoid treatment modalities currently available under state law.”

The legislation will add the following Section 26002 to the Business and Professions Code:

“This division shall not apply to any product containing cannabidiol that has been approved by the federal Food and Drug Administration that has either been placed on a schedule of the federal Controlled Substances Act other than Schedule I or has been exempted from one or more provisions of that act, and that is intended for prescribed use for the treatment of a medical condition.”

And the following Section 11150.2 will be added to the Health and Safety Code:

“(a) Notwithstanding any other law, if cannabidiol is excluded from Schedule I of the federal Controlled Substances Act and placed on a schedule of the act other than Schedule I, or if a product composed of cannabidiol is approved by the federal Food and Drug Administration and either placed on a schedule of the act other than Schedule I, or exempted from one or more provisions of the act, so as to permit a physician, pharmacist, or other authorized healing arts licensee acting within his or her scope of practice, to prescribe, furnish, or dispense that product, the physician, pharmacist, or other authorized healing arts licensee who prescribes, furnishes, or dispenses that product in accordance with federal law shall be deemed to be in compliance with state law governing those acts.

(b) For purposes of this chapter, upon the effective date of one of the changes in federal law described in subdivision (a), notwithstanding any other state law, a product composed of cannabidiol may be prescribed, furnished, dispensed, transferred, transported, possessed, or used in accordance with federal law and is authorized pursuant to state law.”

This legislation obviously won’t mean much unless and until federal law regarding CBD changes. But AB 710 signals that the California legislature is taking this issue seriously and is prepared to pivot on a moment’s notice to ensure that patients have unfettered access to CBD once those federal laws do finally change.