CBD in Food: Is it Legal?

Two years ago CBD products were virtually unheard of but now CBD infused products have made it into the mainstream. CBD is no longer only available in hippie health food stores and headshops. It is readily available everywhere from the corner gas station to your local mall. You can buy it in everything from water to pet food. The general public sees it as beneficial and harmless, like taking a vitamin. However, the FDA disagrees. Though they acknowledge the potential uses and mainstream success of CBD, the FDA must conduct rigorous, evidence based scientific inquiry and prove the safety and efficacy of the compound before they give it a seal of approval.

Because CBD has been manufactured into a prescription drug known as Epidiolex it is now officially labeled as a drug and not a plant based food additive. Testing the effects of CBD on foods, beverages and cosmetics could take years to accomplish and meanwhile the market is exploding with new products everyday.

The Law of the Land

Under federal law currently, CBD in food and drink is completely illegal. The federal Food, Drug and Cosmetic Act makes it illegal to add any drug, approved or not, to animal or human food. Yet CBD is sold in food and beverage items all across America and the authorities do not seem concerned about stopping it. The reason for this is that CBD falls into a gray area thanks to The 2018 Farm Bill that legalized hemp. CBD can be derived from cannabis or hemp. In order for a plant to be labeled as hemp, it must contain less than 0.03% THC. If the THC level exceeds that number then it is technically a marijuana plant and its legality depends on the state. Currently, only 33 states have legalized cannabis in any form, and it is still illegal on a federal level to grow or consume cannabis.

Even though industrial hemp, and therefore CBD oil, has been decriminalized there are laws governing its usage and manufacturing on the federal and state level. The problem is the laws vary from state to state and the federal laws are virtually unenforceable because of this. The FDA, which trumps state law because it is a federal law making organization, has banned food products containing CBD from participating in interstate commerce or to advertise CBD products as therapeutic in any way. These laws are very easy to work around since you can buy local, shop on the internet and do the last step on the manufacturing process in each state. Since CBD usage has become mainstream, it isn’t necessary to advertise the health benefits of adding it to consumable and usable products. People already know what it does and why they want it and will buy it regardless of the vague labeling.

The Shifting Landscape of CBD

CBD is here to stay but the laws are not. As the FDA tests and validates the therapeutic value of CBD laws will change. As more states legalize cannabis and there are more legal ways to produce CBD the laws will change. Eventually the federal government will make enforceable laws to manage the sale of CBD nationally. But until that day comes know that you are technically breaking the law each time you eat or drink a CBD product!

Though industrial hemp — and therefore CBD — has been decriminalized in the U.S., the FDA issued a statement in December warning that products containing CBD cannot claim to have therapeutic benefits unless they have been approved by the agency for that particular use.

The FDA also clarified that because the compound is an active ingredient in an FDA-approved drug, it is unlawful to add CBD to food that’s part of interstate commerce or to market CBD products as dietary supplements.

Yet companies, restaurants and cafes are adding CBD to foods and beverages left and right. Some are blatantly ignoring the FDA’s warning, while others are relying on legal loopholes, such as not explicitly saying that their products are meant to be consumed.