The Evolving Landscape of CBD-Infused Foods
Jumping into the CBD-infused food and beverage market is a very attractive prospect. It appears, from the outside, to be less of a legal gray area than cannabis, and it’s a rapidly growing market.
Before you splash out on product development, it’s important to realize that the regulatory landscape is more complicated than you might think. It’s important to consider the risks as well as the rewards.
CBD vs. Cannabis
When hemp and hemp-derived products were removed from the definition of marijuana by the 2018 U.S. Farm Bill, it was a big step toward legalizing cannabidiol (commonly known as CBD) as an additive, even in states where cannabis remains fully illegal.
In the wake of that change, 15 states have legalized CBD-infused food and beverages up to 0.3% of CBD per container. That includes all three economic heavy hitters: California, New York, and Texas.
The FDA Conundrum
When we said the reclassification of hemp was a big step towards legalizing CBD, we meant it. But it’s “a big step” that many people confuse with “the final step.”
CBD-infused food and beverages are not actually legal under federal law.
CBD food products are still subject to Food and Drug Administration (FDA) regulations that apply to added substances, and the FDA has (as yet) only approved one CBD product – a prescription drug for epilepsy patients.
Adding CBD to food is currently federally illegal.
Yes, everyone seems to be doing it (or at least talking about doing it). Yes, various state laws “legalizing” CBD-infused food and drink have been passed.
Yes, the FDA has said that, as of 2023, they’re considering a “new regulatory pathway” for foods, beverages, and supplements containing cannabidiol. For this to become meaningful, they’ll need the cooperation of the U.S. Congress.
As a result, none of those factors make CBD-infused foods legal under federal law. No one has been taken to court yet, but it doesn’t mean that they won’t be.
A CBD-Infused Gamble
So. Manufacturing and selling CBD-infused food products right now is federally illegal.
But so are all cannabis products, and those markets are exploding in every state where they’ve been legalized.
What does this legal gray area (and the precedent set by cannabis) mean for you?
Ultimately, we can’t tell you. Federal regulators have agreed to leave cannabis products alone based on state law, but there’s no guarantee that CBD-infused foods will get the same treatment. One is primarily a problem of the DEA, while the other is an FDA issue. That’s just one reason they might be handled differently.
In states where CBD-infused foods have been sanctioned by the legislature, making or selling CBD-infused foods may be a smaller risk. Similarly, you may be able to minimize risk with foods and beverages prepared for on-site service (as in restaurants and bars); these have always been less scrutinized by the FDA than products manufactured and sold in sealed containers.
But there’s no guarantee. All we can do is warn you that entering the market is a gamble. Even large industry players aren’t ready to take the risk. In fact, drink company Molson Coors recently announced that it was dropping product development due to this very legal quagmire.
It’s up to you (and your lawyers!) to judge whether the gamble is sound and, if so, how you can minimize any risk to your business.
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