If you’re a consumer who’s interested in the new CBD craze, you could be forgiven for being confused about whether it’s legal or not.
With the passage of the 2018 Farm Bill, hemp and all hemp-derived CBD products are legal on the federal level. But, take that statement with a grain of salt.
On the one hand, CBD products seem to be springing up everywhere, in every conceivable form. Even drugstore giants are starting to get in on the act, rolling out lines of CBD topicals, sprays, soaps, and patches.
Even with a laundry list of different ways to take CBD, many people prefer to eat it. CBD food products include gummies, cookies, and even dog treats – which is why so many people, and pets, love this method.
At the same time, you’ve probably seen stories in the news about state governments cracking down on retailers of CBD food and drink. Your favorite local retailer of CBD cookies or brownies might even have been shut down.
So what’s really going on? The confusion has to do with the peculiar – and peculiarly political – way in which CBD came to market in the first place.
The Difference Between Food and Drugs, Legally Speaking
Once the DEA dropped industrial hemp (and hemp-derived CBD as a result, thanks to the 2018 Farm Bill) from the Controlled Substances Act, CBD fell under FDA jurisdiction.
As the name implies, the FDA regulates both food and drugs but regards them as separate categories, even though many plants provide both.
Dietary supplements fall under the first category, and so can be freely mixed with food. They’re fairly easy to bring to market, though you do need to notify the FDA and follow certain standards of labeling and purity.
Meanwhile, drugs follow a much stricter protocol.
When a company discovers a potential new drug, it has to go through several years of testing for safety and efficacy before the FDA will allow it on the market.
Because of its potential as a “new drug,” the FDA maintains that you cannot put CBD oil in food or drink products or label CBD as a nutritional supplement until research is done to determine whether or not CBD is food-safe.
However, that’s not quite the end of the story, because CBD’s story is unlike the others.
CBD’s forked path
The thing about CBD is that it came to market behind a veil of mystery.
Since it comes from the cannabis plant, the U.S. government previously grouped it along with marijuana as an illegal substance.
However, the fact that a lot of people were getting medical benefits from marijuana led a number of states to legalize its medical use – without going through the FDA process at all.
Therefore, even though CBD isn’t intoxicating or addictive, for years only official medical-marijuana outlets distributed it.
As cannabis laws continued to loosen, CBD sellers branched out.
The 2014 Farm Bill made a major step in legalizing hemp by distinguishing it from marijuana, due to its lack of THC.
The final stroke came with the 2018 Farm Bill, which federally legalized the production of hemp. This move opened up new channels to develop hemp-based products, including hemp-derived CBD oil.
Because CBD came to market without FDA oversight, retailers have been treating it like a dietary supplement, selling it without prescriptions and adding it to a variety of products, including food and drink.
But thanks to further research and development throughout the CBD industry, it soon became officially defined as a “new drug,” not a dietary supplement. And the FDA had a long-standing rule against putting drugs – even legal ones – into food and drink for sale.
After all, when the agency approves a drug, it doesn’t just make it legal but specifies certain dosages and methods of delivery, as well as the conditions that the drug treats.
Ignoring those rules can lead to things like purple drank, which has contributed to a number of unexpected deaths.
The Legality of CBD in Food: The States Decide
The FDA doesn’t really have the manpower to take on the giant that the CBD industry has quickly become, leaving it to the states to enforce the rules. So the first thing to know if you’re trying to figure out the legality of CBD in food is whether CBD is legal in your state.
Even freewheeling San Francisco shut down a store that was selling CBD candy.
The governments of New York and Maine, meanwhile, also issued bans, only to change their minds later. New York’s latest hemp law, enacted this year, largely puts off the issue, while Maine’s state legislature explicitly changed the law to allow CBD in food.
Meanwhile, Montana explicitly allows CBD to be added to alcohol, food, and cosmetic products, while states like Texas and New York are waiting to hear the FDA’s decision before finalizing legislation.
With such confusing terminology and regulations surrounding an emerging industry, the results are rather patchy attempts at law enforcement.
The people push back
However, as the examples from New York and Maine show, the FDA’s position on CBD is increasingly unpopular.
Though the FDA process is based on science, public opinion has long played a role in drug policy.
After all, people used plants for medicine for millennia before the FDA existed. In fact, many early medicines that became standard, such as aspirin and pseudoephedrine, derived from or imitated herbal remedies.
While people have been using cannabis medicinally since ancient times, CBD by itself is less than 80 years old. Even still, that’s long enough for scientists to do a fair bit of research on it.
Some of this research led the World Health Organization to declare in 2017 that CBD “exhibits no effects indicative of any abuse or dependence potential,” and “is generally well tolerated with a good safety profile.”
That’s more than you can say about a fair number of commonly ingested products, such as alcohol.
So while federal regulations currently opt against putting CBD in a cocktail, in reality, the cocktail is probably more dangerous to you than the CBD is.
Can You Put CBD Oil in Food?
All of this is about CBD manufacturers and retailers who are selling CBD food products. What about the average person like you? Can you put CBD oil in food?
So long as you’re not selling it, yes. The FDA is only really interested in how suppliers are packaging and marketing CBD, not how users are using it. So if you want to create your own CBD foods and beverages, go for it.
In many cases, you can just substitute a bit of unflavored CBD oil tincture for whatever vegetable oil or fat a recipe calls for. But you can also find plenty of CBD food recipes online, ranging from drinks to desserts to protein bars. Making such goodies for your own consumption or to serve to family and friends is not going to bring the feds knocking at your door.
CBD Change is Coming
This increase in popularity and safety research has led lawmakers to advocate that the FDA resolve CBD’s ambiguous position in favor of more access.
After forming a work group to study CBD regulation last year, the agency concluded that it needs more research on safety, despite the World Health Organization’s reassurances. CBD does seem to affect the liver’s ability to metabolize certain substances, including some medicines, so be sure to discuss this with your doctor if you’re on medication and thinking of using CBD.
But the political popularity of CBD continues to grow, not only because of consumers enjoying its benefits, but because hemp farmers value their new prosperity enough to lobby their legislatures for protection.
And bringing CBD under the umbrella of the law would bring consumers even more benefits.
Right now, CBD isn’t regulated either as a dietary supplement or a drug, meaning that buyers have to be careful about what they’re getting.
Be sure to buy CBD products from companies that are as transparent as possible. They should get third-party testing to ensure the purity of their products, not make extravagant claims, and provide information on every step of the production process.
Clearly, society is moving in a pro-CBD direction; it’s just a question of when the government will catch up with the times.
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