You can buy CBD-infused products everywhere. By the time you can buy something at Bed, Bath, and Beyond, you figure all the legal battles surrounding it have pretty much worked themselves out, right?
But CBD is still a legal mess.
It starts with the crop. Per the Drug Enforcement Agency, marijuana plants are illegal. While hemp plants are legal since the 2018 Farm Bill, it’s really difficult to tell hemp and marijuana plants apart. And due to the strange horticultural magic of plants, sometimes innocent hemp fields making only CBD will spontaneously spawn marijuana plants making THC.
It continues with the product. The Food and Drug Administration – which has the authority to regulate CBD under the Federal Food, Drug, and Cosmetic Act and section 351 of the Public Health Service Act – has approved only one CBD product – and it’s a prescription drug called Epidiolex used to treat two rare forms of epilepsy.
And it goes further still with how that product is advertised and sold. It is still illegal to introduce CBD-containing products into interstate commerce, and to market CBD-containing products for a therapeutic or medical use. The FDA may send warning letters to companies who market products that do not contain the levels of CBD they claim to contain or marketed to treat human or animal medical conditions (see, e.g., Nov. 22, 2019 letter to Brad Ridenour of KOI CBD LLC, one of 15 warning letters sent about a month ago).
While consumer interest is high, there is no regulatory framework developed to market and sell CBD products legally, meaning there is a great deal of uncertainty about the amount of CBD in a particular product as well as whether the CBD was derived in such a way that it might bring heavy metals along with it.
On another note — separately, the FDA determined that hulled hemp seeds, hemp seed protein and hemp seed oil are Generally Recognized as Safe, and are permitted in food so long as they do not make claims that they treat diseases.
For more:
- Drug Enforcement Agency, Schedule I, “marihuana.”
- 2018 Farm Bill, which removed hemp (defined as 0.3% or less THC on a dry weight basis) from the definition of marijuana in the Controlled Substances Act (See Sec. 10111. Hemp production on p. 803.)
- Food and Drug Administration, What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD
- Statement from FDA Commissioner Scott Gottlieb, M.D., on signing of the Agriculture Improvement Act and the agency’s regulation of products containing cannabis and cannabis-derived compounds (Dec. 20, 2018).
- PBS, “Is CBD legal? Here’s what you need to know, according to science” (Jul 12, 2019).
- Andre Bourque, “How Hemp And The Farm Bill May Change Life As You Know It,” Forbes (Dec. 17, 2018).
- Laura Reiley, FDA comes down hard against CBD-infused food and beverage, ending months of silence, Washington Post (Nov. 27, 2019).
The Law in Life 