What is behind CBD Laws and why CBD Products stand in Regulatory Purgatory
What are CBD laws and how do they effect CBD products? Go ahead and search for any tincture, lotion, vitamin, or food product that has any relation to CBD and you will find a wonderful bag of confusing labels associated with it. For starters, some products will list their product or ingredients as “Hemp Oil”, others “Hemp CBD”, and a whole host of them as “CBD Oil”.
But some online retailers prohibit any CBD products and both the FDA and state level agencies have raided and seized store shelves with CBD products in violation of what appear to be conflicting and counterintuitive regulations. Many scratch their heads and wonder why psychoactive compounds such as high THC cannabis and similar products can be sold recreationally in many states but non-psychoactive products cannot. People have been reading about cannabis laws for the last few years but only recently have CBD laws become relevant.
Despite this uncertain environment, the race continues as creative manufacturers and cannabis entrepreneurs muscle for rank in what some consider a defining moment in health, business, therapeutics, and an exploding industry of alternative medicines.
A Very Brief History of CBD Before the Current CBD Laws
Thanks to the pioneering work of researcher Raphael Mechoulam, cannabidiol’s eventual “discovery” came almost 20 years after THC’s back in 1964. This of course led to the birth of what we now refer to as the Endocannabinoid system (ECS). This evolution has sparked the interest of many other researchers, health practitioners, and businesses who place hope in this amazing and complicated crop. As legalized marijuana began to take a foothold across the nation, all things cannabis and those things derived from it started to gain attention, especially CBD.
CBD Laws versus Cannabis Laws
This post is about CBD law. And since this post is not about legalized medical and recreational cannabis, we will spare you the time in explaining that history. But to understand where the dividing line begins, it starts with hemp; or as some more appropriately refer to as “industrial hemp”. This ancient textile (literally the first fiber used by prehistoric humans) that is grown to have less than .03% THC was on the same schedule [Schedule I] as what we all know as being cannabis prohibited by the US government. Until very recently, hemp has been removed thanks to the Farm Bill of 2018. However the new environment has 0penned the door for only states that can issue limited pilot programs for research under the farm bill to bolster the benefits and safety of hemp.
Thus, hemp may not be Schedule I anymore, but that doesn’t mean you can start adding CBD to pizza, energy drinks, and nutrition bars. However, if you are extracting CBD from cannabis and putting it into vape cartridges, you are operating in the licensed cannabis industry space that provides specific regulations. The difference falls on whether you are ingesting CBD as a form of food. As you will see, this is why CBD law is currently in flux.
This brings us to products that contain CBD, which make them default as “food additive” under the Federal Food, Drug, and Cosmetic Act (FD&C Act). In other words, the FDA deems CBD as an unauthorized and unapproved food additive that the agency believes is safe.
California’s Department of Public Health (CDPH) has issued the same directive and echoes the sentiments of the FDA. The only allowable CBD law to let you infuse products you will eat is the CBD that is derived from licensed cannabis cultivators, and therefore allowed as an additive in cannabis products alone. To be more specific, the CBD law that governs in California is that regardless of where the CBD comes from (THC cannabis or industrial hemp), CBD is not an approved food additive.
Navigating CBD Laws & Venturing into the CBD Industry
Some of the biggest players in the cannabis world did not predict the head-spinning speed in which CBD products would capture consumer’s attention. Despite financial and technological resources, CBD law has stopped many in their tracks. Now as the medicinal, recreational, and commercial markets expand, entrepreneurs find themselves in a regulatory limbo while large labels tout their entry into the space with what appears as little enforcement and confusing agency actions.
We advise many of our clients to structure a very solid and mindful business plan around what specific markets, products, and regulatory environments they wish to venture into prior to printing labels and stocking store shelves. This of course takes time and preparation until there is a more official announcement from federal and state agencies that would open the floodgates for CBD infused additives.
Bart Kaspero is an experienced criminal defense and regulatory attorney who has focused on using technology and the law in bringing privacy to criminal records. His unique background has allowed him to help a broad spectrum of clients and cases involving cryptocurrency, import/export violations, cannabis/CBD licensing, consumer protection, and emerging market businesses.
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