The FDA's stance on hemp-derived CBD in Food and Drink

The tide is changing in the hemp industry, and it’s changing fast. When the 2018 Farm Bill removed hemp from the Schedule I controlled substances list, this versatile member of the cannabis sativa family was immediately welcomed back into the mainstream. Despite the changes to federal law, the path to regularization hasn’t necessarily been a smooth one. In particular, the FDA’s stance on the use of hemp-derived CBD in food and drink remains unclear, affecting the sales of CBD-infused edibles and the innovative development of new CBD-infused products.

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What Did The Farm Bill Authorize?

The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) was signed at the end of last year, and while it modified federal law pertaining to hemp cultivation, it did not take full responsibility for the rules and regulations pertaining to the manufacturing of hemp-derived products by default. Other authoritative bodies, including the FDA and each individual state, are involved in the regulatory process of hemp-derived products. For example, CBD-infused edibles, and grocery-store products containing cannabis or cannabis-derived compounds, are subject to FDA evaluation under the Food, Drugs & Cosmetic Act. The FDA has not yet authorized the addition of CBD or THC to food, or to products that are marketed as dietary supplements, or to any kind of edible product in which either cannabinoid could be considered a “food additive”.

The Current Situation

One of the direct consequences of the FDA’s involvement is that, while the FDA claims regulatory jurisdiction, it doesn’t seem to be enforcing rules or systematically regulating the many CBD-infused edibles that continue to make their way onto the market. More than a quarter of Americans have admitted to having tried CBD at least once, and the demand for CBD-infused products is expected to increase consumer spending to $4.1 billion in 2022, according to a market research by Arcview. A study by Cogent Info states that the CBD edibles market should reach $22 billion by 2022. 

Despite the lack of regulatory clarification, many brands have chosen to respond to consumer demand with the development of innovative CBD-infused edibles. Brands like GoodBites, Recess, Diamond CBD, Sweet Reason, and Chill are crafting products as diverse as CBD-infused sparkling water and raw cookie dough. Supermarket chains, including The Kroger Co. and Dierbergs Markets, are either planning on selling CBD products or have already started to stock their shelves.

On top of the individual action taken by a large number of brands, each state also seems to be operating under its own set of rules. For example, the Departments of Health in certain states, including New York, Maine, and Ohio, have prohibited the inclusion of CBD in food and drink products. In other states, California as a clear example, state regulations are fairly blurry, and the addition of CBD to food and drink products is cause enough to lose points in health inspections, as illustrated by the County Department of Public Health with regards to Los Angeles.

 At the consumer-facing level, it’s worth noting that a number of grocery stores have taken the decision to discontinue all sales of CBD-infused products. Nick Green, Co-founder and CEO of the online supermarket, Thrive Market, published a public letter on June 17, 2019, in which he stated, “We received a notice from our merchant processor demanding that we cease the sale of all hemp and CBD products on Thrive Market. We unfortunately have no choice but to comply.” He did, however, make sure to end his letter by saying, “We believe that ethical and sustainable hemp is another cause worth fighting for, so rest assured that we will be working behind the scenes to get hemp products back on Thrive Market. In fact, we're already in conversations with a new processing partner to try to make that happen.”

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Ambiguous Regulations and Nationwide Complaints

Confusion prevails. The Food Marketing Institute (FMI) submitted a comment to the FDA’s docket regarding products containing cannabis or cannabis-derived compounds. The document included the following statement:

“FMI respectfully urges FDA to move swiftly to provide guidance on a lawful pathway to market for hemp-derived CBD products in order to ensure such products meet applicable quality and labeling standards, as deemed appropriate by FDA. Furthermore, in addition to uniform quality and labeling standards, we also request consistency in enforcement across distribution channels.” 

On May 31st, the FDA held a public hearing on the subject of CBD products. Some considerable stakeholders, like the FMI, attended and manifested their concerns. Betsy Booren, Senior Vice-President of Science and Technology at the Grocery Manufacturers’ Association, attended the event and voiced her concerns accordingly, “As consumer interest for food, beverage, personal care, and household products containing cannabis and cannabis derivatives continues to grow, the necessity for national uniform regulatory frameworks that protect public health is of critical importance. The potential patchwork of laws at the state and local level will promote confusion among consumers.”

What the Future Holds

Up until now, it seems that the FDA has only sent out a number of warning letters to companies that have attributed health benefits to their products through marketing material. The concern raised by the FDA is that these health benefit claims could discourage patients from seeking professional medical assistance.

Even so, the fact remains that consumers are interested in trying CBD products, brands continue to manufacture them, and the FDA is, as of yet, unable to successfully and consistently regulate the industry nationwide. In an interview for The Atlantic, Esther Blessing, a researcher and psychiatry professor at New York University predicted that “getting into the full pipeline of FDA approval is probably eight to 10 years away.”

Right now, the CBD market is clearly attracting all sorts of players. What’s important is for authoritative bodies, like the FDA, to find ways of evening out the playing field and enforcing clarity across the board. It’s what consumers need in order to be able to trust in the consistent regulation and testing of all products available.

Jessica Mintz