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article imageFederal and state rules on CBD-laced foods contradict each other

By Karen Graham     Apr 9, 2019 in Politics
Hemp-derived CBD has become a nationwide health-food craze. Stressed-out people flock to cafes and restaurants that sell CBD cocktails and cookies, doughnuts and CBD-laced coffee. However, none of this is legal at the federal level.
In New York state, the federal law has butted heads with state regulations and even city health regulations, leaving businesses wanting to sell CBD-laced food and drink products totally confused as to which rules to follow, reports Reuters.
In mid-December, New York state officials told food growers and producers they were allowed to produce and sell tea and chocolates laced with CBD. But since that time, the New York City Public Health Department has confiscated thousands of dollars worth of CBD-laced food and drinks from local cafes and restaurants. The seizures came about just weeks after federal law explicitly made CBD legal across the country.
The inconsistencies in federal, state, and local rules in New York have highlighted a problem that is growing by leaps and bounds across the country. Producers and businesses don't clearly know which law to follow.
“I’m trying to be compliant with the law, but no one seems to be fully aware of what the law is and isn’t,” said C.J. Holm, the owner of the Fat Cat Kitchen, which touts CBD coffee and cookies on a sidewalk chalkboard.
CBD oil from hemp
CBD oil from hemp
TheHempOfficial (CC BY-SA 4.0)
Consumer interest in CBD
Interest in CBD tinctures, topical creams and edibles has grown proportionately with the legalization of marijuana. There are now 33 states where medicinal and/or recreational use of marijuana is legal, even though cannabis is a controlled drug and illegal according to federal law.
According to the Cowen Washington Research Group, in 2018, U.S. consumers spent an estimated $300 million on CBD food and drinks. Cohen also estimates that by 2025, spending on CBD products is expected to be between $600 million and $2.0 billion.
The 2018 Farm Bill, enacted in December, declassifies industrial hemp as a Schedule I substance, shifting regulatory authority from the DEA to the Department of Agriculture. Doing so provides autonomy for states to regulate the industry.
However, according to the Cohen Washington report, "the new law does not change the FDA’s oversight authority over CBD products and FDA Commissioner Scott Gottlieb has made it clear that his agency will continue to step in when certain health claims are made.
Additionally, the FDA has stated that CBD cannot be added to food products sold across state lines or marketed as a dietary supplement, regardless of whether it is hemp-derived. This point, made by Commissioner Gottlieb is contrary to what the New York state Agricultural department issued as guidance for businesses in December.
The guidance states it is legal to sell “CBD tea,” “chocolates with CBD drizzle” and other CBD edibles, so long as the products are made and marketed as dietary supplements, which are governed by more stringent standards than ordinary food.
Amsterdam store window displaying various medical cannabis  hemp food and other types of products
Amsterdam store window displaying various medical cannabis, hemp food and other types of products
Nicollette from Bulgaria (CC BY 2.0)
Contradictory state laws
Depending on where you live, reports the Washington Post, the laws and regulations will be different. A 2018 Colorado law says all parts of hemp plants can be added to food for sale, while in California, Maine and New York City, regulators follow the FDA and ban the sale of hemp-laced food and drinks.
Many more states don't allow hemp-derived CBD to be sold at all, regardless of if it is a lotion, tincture or pills. “I think the FDA has — I think they have every intention of embracing the industry,” said Andrew Aamot, president, and chief executive of Sträva Craft Coffee, a Denver-based coffee roaster that sells CBD-infused beans. “But it’s just gone so far so fast that they’re trying to catch up.”
One other question has popped up involving advertising. Broadcasters naturally ask whether they can advertise these seemingly innocuous CBD products. But advertising CBD products runs headlong into the same rules and regulations selling or consuming CBD products is already embroiled in across the country.
While advertising on the radio, television and in newspapers has not been tried, there are a number of legal considerations that need to be considered, such as the age of the audience, and what the advertisement's message is telling consumers. This is one aspect of the CBD and marijuana market that will be interesting to follow.
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