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There's a lot of confusion and questions about CBD products
and what it means for CBD-related industries, especially those in
the food and beverage industry. The Agricultural Improvement Act of
2018, also known as the "Farm Bill," removed industrial
hemp and products derived from it, including CBD, from the Schedule
I list of drugs under the Controlled Substances Act. Which means
industrial hemp is no longer illegal at the federal level. So
things should be easy, right?
Wrong. In addition to the federal legal maze, states are
adopting their own strategies for dealing with CBD in food and
beverage.
In A Nutshell . . .
Under the Farm Bill's safe harbor, hemp-derived CBD is
legal, as long as the hemp contains no more than 0.3% THC (the
psychoactive component of marijuana) and complies with all
applicable laws at the places of origin and final destination. But
it gets more complicated for food and beverage stakeholders. The
federal Food and Drug Administration (FDA) has made it clear
that:
it treats cannabis products like all other FDA-regulated
products;
any product making a therapeutic claim must have FDA approval
before introduction in interstate commerce;
any product intended for the use in the diagnosis, cure,
treatment, or prevention of disease will require FDA approval
before marketed in the United States;
marketing CBD or THC as a dietary supplement is illegal;
and
foods and beverages containing CBD or THC
introduced in interstate commerce are illegal.
What To Make Of It All
To be clear, the FDA prohibits companies from adding CBD to
food, drinks, and supplements. The agency has expressed concerns
about the safety of ingesting CBD. But it has also made a
commitment to explore the regulatory framework that will allow
hemp-derived CBD to become legally widely available to the
public.
On the state level, hemp-derived CBD is also highly regulated.
While some states have adopted laws permitting and regulating the
production, transport, distribution, and sale of hemp-based CBD
products, the laws are evolving and differ from state to state. And
almost all states have adopted the FDA prohibition on advertising
and selling ingestible hemp-derived CBD products.
The Takeaways For Now
All of that being said, there are some takeaways you need to
know about the
current – and future – state of CBD in our
industry.
Tread carefully into the CBD F&B trend and be certain you
are working with reputable suppliers.
When working with third-party suppliers and vendors, F&B
operators should negotiate for strict contractual protections
including warranties and indemnities.
Make certain your contracts provide for immediate termination
for non-compliance with laws.
Except in states where ingestible hemp-derived CBD is permitted
(like Colorado and Washington) and the products are wholly produced
and exclusively advertised within the state, avoid advertising or
otherwise positioning products as foods or beverages.
And stay tuned . . .
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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