Yes, that CBD Product in Whole Foods is (Still) Illegal

By Michael Jensen, Chernis Law Group

On September 21, the “CBD West” trade show descended on Anaheim. Given the city’s historic identification with Disneyland and all things fantasy, the CBD industry could not have selected a better forum to display and sell their products. Along with the mainstreaming of cannabis, hemp-derived cannabidiol, more commonly known as “CBD,” is becoming a staple of health food stores, online retailers, and many other commercial outlets in across the country that one would not mistake for a dispensary. The CBD market is projected to grow exponentially greater than cannabis. While walking the expo floor I viewed (and sampled) a panoply of products infused with CBD, including tinctures, skin patches, drink powders, candies, chocolates, salves, massage oil, cooking oil, and lotions.

CBD is the new rage in the alternative treatment of various health conditions. It is increasing associated with treating serious illnesses, and alleviating ordinary symptoms of illnesses, without creating the high or psychoactive effect of its cannabinoid sister THC. And unlike THC products, which will practically always violate the Federal Controlled Substances Act there is a colorable argument as to why CBD products derived from Industrial Hemp and grown in accordance with the 2014 Farm Bill do not violate the CSA.

But here’s the thing: CBD products, even when derived from Industrial Hemp, are still considered illegal under the Food, Drug & Cosmetic Act (FDCA). This is because CBD is considered an unapproved drug that is currently the subject of clinical investigations. Consequently, CBD cannot be marketed as a drug or dietary supplement and cannot be used as a food additive, since it is considered an adulterant when added to a food product.

Simply put, there is no way to sell any CBD product that is in compliance with the FDCA. Over the past few years, the FDA issued numerous letters to manufacturers of CBD products that market them as either drugs or dietary supplements to treat any number of health conditions. Fortunately, this has been the extent of federal enforcement actions.

Adding to the uncertainty, the California Department of Public Health issued a statement in July 2018 that expressly prohibits adding CBD to food products. This despite the CDPH licensing and regulating manufacturers of cannabis food products that include THC and CBD. And yet, at CBD West, and across the State of California, CBD both food and other products are widely sold.

Between the FDA, DEA, and state agencies in California, the legal landscape is confusing to say the least. The bad news is that, strictly speaking, all products containing CBD are illegal under federal law, and food products containing CBD are also illegal under California law. The good news is that federal and state enforcement has been very limited thus far, making the risk of criminal exposure minimal. Nonetheless manufacturers should tread cautiously in this marketplace and consult with legal counsel whenever marketing and selling products that contain CBD.

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