FDA doesn’t allow CBD in food and drinks, but many states do. Will FDA change its mind?

September 2, 2020

CBD’s growth in food and beverages is undeniable as more states move to make CBD a legal food and drink ingredient. Will this change FDA’s mind about CBD foods’ legality? Attorney Ashish Talati provided an updated look at CBD food’s regulatory status.

More U.S. states are permitting the use of cannabidiol (CBD) in foods and beverages. This contradicts FDA’s current position that CBD is illegal in foods, beverages, and dietary supplements. Attorney Ashish Talati, partner at Amin Talati Wasserman LLP (Chicago), provided an updated look at CBD’s legal status in foods and beverages during an August 13 Nutritional Outlook webcast titled “CBD in Food: A Challenging Road Ahead.”

“My recommendation to companies looking to get into this area, especially for food use, is to monitor the states,” Talati said during the webcast. “At our last count, there are about 21 states where CBD is allowed legally as a food or a dietary supplement—and that list is growing.”

Nearly half of U.S. states currently allow the sale of hemp and CBD food products, including large states such as Florida, Ohio, Texas, and West Virginia. Other states, such as California, Hawaii, and Massachusetts, have introduced legislation to allow hemp and CBD in food. And still other states, such as Maryland, continue to align with FDA’s position that CBD isn’t legal in food.

Companies selling CBD foods should be wary, Talati cautioned. The patchwork of state laws governing CBD foods has resulted in a wide disparity of individual state regulations, some contradicting each other. These can include registration requirements for retailers, manufacturers, distributors, and/or products (such as in Alaska, Texas, Utah, and West Virginia). States may also have unique testing and labeling requirements, including QR codes. One state, Utah, even regulates the shape of an edible: “They allow it as a gummy, but it has to be in a rectangular or a cube shape, so that tells you how companies have to monitor individual state requirements because any other shape may not pass and may not be allowed,” Talati said.

To ensure compliance, companies must familiarize themselves with state regulations. “One of the questions we usually get is, ‘Can I have one label that complies with all the states’ and FDA regulations?’” Talati said. “It’s very difficult to have one label that can comply with every single state. We’re hoping that down the road, it will get better.”

That said, Talati noted, in most states enforcement of CBD foods “has been inconsistent.” One exception, he said, is Florida, which has issued stop-sale orders in the past. “So it’s important that if you’re in Florida, you fully comply.”

Will increased tolerance of CBD foods in the states push FDA to change its position? That remains to be seen, said Talati. “What we see is that there is some tension between state and federal positions. Federally, FDA says you cannot add it to foods, and now we’re seeing more and more states allowing it.”

He continued: “Where we really see in terms of where things go from here is that more and more states will allow CBD in foods. We don’t see that stopping…We do foresee that down the road, FDA will allow it in dietary supplements. And whether FDA allows it in foods, that’s a question mark right now. But if more and more states are allowing it, then down the road I think FDA may not have a choice at that point, when most of the country has a legal basis to sell it in states.”

Talati shared many more CBD regulatory updates during this free webcast. To watch this free webcast on demand, click here.