July 10, 2020

The Risks and Rewards of CBD Foods & Beverages

by Walter (Chad) Blackham, Mac Murray & Shuster LLP

Recent years have seen an explosion of CBD-infused products, spanning the gamut of consumer goods. Among the most popular ones hitting the shelves are foods and beverages that include everything from energy drinks and cocktails to candy, cookie dough and even breakfast cereal. What may be surprising to learn, however, is that these products remain illegal at the federal level.

A bit of background: The 2018 Farm Bill famously removed hemp, which includes low-THC derivatives of cannabis, such as CBD products, from the definition of “marijuana” in the Controlled Substances Act. This reclassification resulted in one of the largest changes to federal marijuana law in decades, with hemp and CBD-based products now being regulated by the Food and Drug Administration rather than the Drug Enforcement Administration. Since then, there has been a proliferation of manufacturers scrambling to strike it big in the CBD space, as retailers stocked their shelves with CBD infused oils, lotions, tinctures and capsules. Many of these products were, and are, legal. Others, like foods and beverages, however, remain illegal. So where exactly is the line drawn, and why?

The continuing illegality of CBD foods and beverages can be traced to the FDA’s Food, Drug, and Cosmetic Act, which granted the FDA authority to oversee the safety of food, drugs, medical devices and cosmetics. Under the FDCA, any substance added to foods or drinks, like CBD, is an “additive” subject to premarket review by the FDA unless it is “generally recognized as safe for human consumption” – also referred to as GRAS. In order for a substance to be considered GRAS, scientific data and information about the use of the substance must be widely known, and there must be consensus among qualified experts that the substance is safe under the conditions of its intended use.

Critically, the scientific community has yet to reach consensus as to whether consumption of CBD foods and beverages are safe. In a classic Catch-22, the scientific community cannot affirm whether or not CBD is GRAS because there isn’t a sufficient body of scientific evidence to determine that, and there isn’t a sufficient body of scientific evidence because, until 2018, CBD was federally illegal and could not be researched without special approval. Accordingly, foods and beverages containing CBD remain federally illegal unless preapproved by the FDA, a hurdle no manufacturer has cleared yet. Despite this, retailers continue to stock CBD foods and beverages due to the lucrative revenue they generate and despite the fact the Federal Trade Commission and FDA have sent joint warning letters to cannabis companies regarding sale of CBD infused products that violate the FDCA.

Even so, the FDA has acknowledged the growing popularity of these products and has stated its intent to create regulations governing the issue. Nonetheless, the FDA has been vague as to when these regulations can be expected. Until the final regulations come down the pipeline, retailers should beware: CBD-infused foods and beverages remain federally illegal, and their continued sales risk drawing the ire of the FTC and FDA.

Critically, the scientific community has yet to reach consensus as to whether consumption of CBD foods and beverages are safe.