CBD in Foods and Beverages? Not Quite Yet

Why Is CBD Everywhere? Asked the New York Times, observing that products infused with cannabidiol, a chemical found in cannabis plants popularly referred to as “CBD,” had gone from obscure to ubiquitous practically overnight.

Consumers could buy CBD-infused donuts, lattes, dog treats, cookies, and so on in what seemed like the blink of an eye. Coca-Cola is reportedly exploring manufacturing a CBD-infused beverage, according to Forbes. CBD is non-psychoactive, which means it won’t get you high, but it has been lauded for its medicinal effects in treating pain, inflammation, and anxiety.

Despite the commercial availability of CBD-containing food products, it has been (and continues to be) unclear whether such goods can be created lawfully. Although many manufacturers will sell CBD-infused foods and dietary supplements across the country (the marijuana delivery service Eaze, for example, will ship CBD products to 41 states and the District of Columbia through its “Eaze Wellness” platform), major retailers and consumer platforms such as Amazon do not sell CBD-infused products.

Furthermore, retailers utilizing payment platforms like Shopify can only use “high risk” gateways to process payments and have had mixed results using large commercial banks to conduct wire transfers for raw commodities. Authorities in Michigan, Florida, Maine, Nebraska, Ohio, New York, and probably elsewhere have begun cracking down on CBD products in recent weeks, adding to the confusion.

CBD may be extracted from both “marijuana” and “hemp” to give you some context. The Cannabis sativa L. plant with a THC concentration of less than 0.3 percent on a dry weight basis is defined as hemp under the Agriculture Improvements Act of 2018, generally known as the 2018 Farm Bill. While the 2018 Farm Bill set the path for large-scale agricultural hemp cultivation, hemp can only be cultivated under a 2014 pilot program for agricultural or academic research until state and federal regulations to implement the new law are established.

What will genetic and nutrition labeling look like in 2020, and how will cannabis integrate into formulations? Listen to Dave Fusaro of Food Processing and Evangelia Pelonis of Keller & Heckman discuss these and other subjects. Take a look at the On-Demand webinar.

Importantly, the 2018 Farm Bill eliminated hemp – including any of its “derivatives, extracts [and] cannabinoids” – from the Controlled Substances Act of 1970’s definition of “marijuana.” As a result, it looked that CBD derived from hemp would be legal under federal law. The 2018 Farm Bill, on the other hand, expressly specifies that the new law does not change or modify the FDA’s jurisdiction to issue regulations and guidelines relating to the use of hemp in foods.

To the dismay of some lawmakers, FDA Commissioner Scott Gottlieb issued a broad statement on the day the 2018 Farm Bill was signed into law, stating that, while certain hemp products – such as hemp seeds, hemp seed protein, and hemp seed oil – are generally recognized as safe food additives, it is illegal “to introduce food containing added CBD…into interstate commerce, or to market CBD…products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.”

While Gottlieb’s statement mentions that “pathways are available for those who seek to introduce these products into interstate commerce lawfully” and that the “FDA will continue to take steps to make the pathways for the lawful marketing of these products more efficient,” it’s unclear what these “pathways” are aside from clinical studies.

Despite Commissioner Gottlieb’s announcement in late February that the FDA would hold hearings in April on effectively regulating CBD produced from hemp, Gottlieb abruptly announced his resignation only a few days later, putting the regulatory process in jeopardy (and sending cannabis stocks tumbling as a result).

States have begun to try to take issues into their own hands due to the uncertainty at the federal level. In California, for example, Assembly Bill 228 was proposed in January to clarify that existing state law may not impose limits on the sale of hemp-derived CBD-containing foods, beverages, or cosmetics. While the state law would not affect the FDA’s ability to regulate products in interstate commerce, it would preclude its Department of Public Health from pursuing enforcement action against CBD product manufacturers.