Legal perspectives on the state of CBD

CBD holds massive potential across every area of food and beverages. According to The Brightfield Group, the U.S. hemp-derived CBD market could hit $22 billion by 2022. It’s a star—some would say revolutionary—with tremendous R&D potential for the next generation of functional, medical and just generally healthy foods and beverages.

That said, it’s only prudent that we take a close look at the legality of CBD as an ingredient—whether derived from industrial hemp (cannabis that has less than 0.3 percent THC) or isolated from commercially grown cannabis (standard levels of THC).

Yes, the passage of the Farm Bill seems to have opened the door to the market for CBD derived from industrial hemp, which is thankfully now legal to grow in the U.S. But as a recent article in The National Law Review points out, that doesn’t mean that it’s open season on CBD for R&D yet (“Will Hemp-Derived CBD Be Fully Legal with Passage of the 2018 Farm Bill? Not Quite,” December 4, 2018, www.natlawreview.com/article/will-hemp-derived-cbd-be-fully-legal-passage-2018-farm-bill-not-quite).

It’s logical to assume that CBD derived from standard THC-containing cannabis grown in states with medical and/or recreational legislation in place would continue to fall under the restrictions in place set by the current Schedule I classification of the Controlled Substances Act (CSA). CBD from such sources would likely be fine for use in legal cannabis edibles and beverages—as long as distribution is limited to that state.

Likewise, many in the industry believe that CBD derived from industrial hemp, now legal per the Farm Bill—which removes industrial hemp from the CSA definition of cannabis and Schedule I classification—would not face restrictions from a DEA perspective.

But that still leaves FDA to contend with, which still considers all cannabinoids, including CBD—regardless of the source of extraction—impermissible additives that adulterate food and supplements. FDA has issued warning letters clearly indicating that it considers CBD a drug.

However, a clear pathway toward progress will be to seek designation of CBD as a generally recognized as safe (GRAS) ingredient. We already have GRAS status for hemp seed oil, but not specifically for isolated CBD. Expect to see suppliers tackling this scientific process over the coming months.

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To complicate matters further, individual states have clarified their positions on CBD—either pro or con (visit The National Review link above for details). This opens some opportunity, but still stands in contradiction with FDA.

In the meantime, tread lightly, thoroughly familiarize yourself with this issue, source and label your products appropriately, and encourage your legislators to reconcile this contradictory state of affairs so business can proceed without hesitation.

KEYWORDS: CBD farm bill

Douglas J. Peckenpaugh is Director of Content Strategy for Beverage Industry, Dairy Foods, Food Engineering, The National Provisioner, Packaging Strategies, Flexible Packaging, Prepared Foods, Refrigerated & Frozen Foods, Snack Food & Wholesale Bakery, and Candy Industry at BNP Media. For over three decades, his work has followed the food industry from farm to fork, including concentrations in agriculture, ingredient processing, packaging and processing equipment, retail grocery branding, foodservice menu development, and food product R&D and manufacturing.