CBD is absolutely booming. The non-intoxicating cannabinoid (drug present in cannabis), which offers a calming counterpart to mind-altering THC, is behind the wave of enthusiasm for cannabis that goes well beyond the states in which adult-use cannabis is legal. As of December, when updates to the Farm Bill legalized hemp-derived CBD, consumers have been clamoring for the product many believe is a cure-all for conditions that range well beyond just those it has been clinically proven to soothe, like MS, epilepsy, and other ailments that cause muscle spasticity. Many Americans believe CBD provides effective relief from anxiety and insomnia, pain and inflammation, colitis, and blood pressure, and they want to get as much of it as they can.
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The natural consequence of this enthusiasm has been the rise of CBD as a food ingredient, but unlike other trendy “superfoods,” it is only just beginning to emerge from the shadow of cannabis prohibition, and continues to present a legal challenge for those chefs and food producers hoping to add it to their products. In New York, for example, the city intends to fine those adding CBD to food. This has left food producers hoping to profit from the CBD boom in a tough spot.
Anna Wiand, senior associate at Florida law firm Gray Robinson, says that while the 2018 Farm Bill legalized industrial hemp, the FDA “retains authority over FDA-regulated products that contain hemp or hemp derivatives, like CBD. Thus FDA retains federal regulatory authority over CBD as a food additive. In a December 2018 press release the FDA advised that it will continue to treat products containing CBD the same way the Agency treats any other FDA-regulated products. [Products] containing CBD remain subject to the same authorities and requirements as FDA-regulated products containing any other substance.”
The FDA’s current position, says Wiand, is that it’s unlawful under the Food, Drug, and Cosmetic Act (FD&C) to allow any food containing CBD or THC to be trafficked interstate or to market them as dietary supplements—even if the CBD is hemp-derived.
The reason is that both CBD and THC are active ingredients in FDA-approved drugs, and thus “were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements. Under the FD&C Act, it’s illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements. This is a requirement that we apply across the board to food products that contain substances that are active ingredients in any drug.”
The present approach may not be the same forever, Wiand notes. The enormous popularity in CBD has not gone unnoticed, and this has increased pressure on Congress. In turn, Congress will soon begin rule-making to develop industry guidance about how to add CBD to FDA-regulated products like food.
About Jesse Staniforth
Jesse Staniforth is a Montreal-based freelance journalist, writer, and editor covering a variety of different beats. He reports regularly on Indigenous issues for The Nation magazine, serving the Cree Nation of Eeyou Istchee, as well on Information Security issues for SC Magazine. His stories have appeared in a wide variety of other publications, from the Toronto Star and Metro News through AskMen.com and University Affairs. After editing several thousands of pages' worth of food preparation training materials for a hospitality industry group, he grew fascinated with the subject of food safety. Reach him at email@example.com.