Whether you’re a consumer or work in the food business, you likely have seen hemp-based cannabidiol (or “CBD”) products exploding in the market recently. CBD, which is a popular natural remedy used for many common ailments, is one of the 104 chemical compounds known as cannabinoids found in the cannabis or marijuana plant. Unlike tetrahydrocannabinol (THC) – which is the main psychoactive cannabinoid found in cannabis and which causes the “high” associated with marijuana use, CBD that is derived from hemp is not psychoactive. Thus, its proponents tout its beneficial health uses, without the worries often associated with marijuana use.

Social media is awash with bloggers, chefs, and parents sharing CBD lattes and sweet treats. Food and beverage companies are quickly jumping on the bandwagon, introducing CBD seltzer water, spice blends, teas, chocolates, beer, and more. Even the pet product industry is trying to capitalize on CBD with treats and food promising to help your animals relax.

There’s one not-so-small issue regarding these products, though: despite its popularity, federal regulations generally still prohibit the use of CBD in food, drinks, and supplements.

What impact do recent state and federal law changes have on hemp production and distribution?

The most recent Farm Bill (passed in December 2018) made some sweeping changes to the rules on hemp cultivation and production. The legislation legalizes the cultivation of hemp under certain restrictions and the production of hemp-derived CBD containing less than 0.3% THC nationally. Ultimately, the Farm Bill legalizes hemp and allows for its transport across state lines.

Likewise, Michigan recently passed the Regulation and Taxation of Marihuana Act (“MRTMA”), which legalizes marihuana use, production, and distribution subject to certain limitations. MTRMA classifies CBD derived from hemp with less than 0.3% THC as industrial hemp and calls for the Department of Licensing and Regulatory Affairs to establish the Marijuana Regulatory Agency to handle retail licensing for marijuana and hemp products.

What do the new laws leave undetermined?

The new laws, however, do not permit the use of hemp or hemp-derived products in food. The Food and Drug Administration (FDA) retains the authority to determine whether manufacturers can use CBD in food, drugs, and cosmetics.

At this time, the FDA has not approved hemp-derived CBD for use in food. The FDA’s current position is that companies cannot add hemp-based CBD to food, drinks, and supplements or make any therapeutic claims about such products. It also prohibits the sale of food, supplements, and other products containing hemp-derived CBD across state lines.

The FDA has conducted clinical investigations exploring the safety of CBD in drugs. Currently, CBD is an active ingredient in one FDA-approved drug, Epediolex, which is used to treat a severe type of childhood epilepsy. Thus, CBD is an active ingredient in an FDA-approved drug. As such, pursuant to the Food Drug & Cosmetic Act (FDCA), CBD cannot then be used in any food or supplement without FDA prior approval. The FDA plans to hold public meetings in April to determine how to regulate CBD derived from hemp in food and supplements. Based on the FDA Commissioner’s public comments, it is anticipated that the agency will establish a framework to allow product developers to lawfully market hemp-based CBD products for use in food.

In the meantime, the FDA has indicated that it will pursue action against manufacturers who place unproven health claims on CBD foods and supplements. The FDA appears to be more concerned with egregious violations of labeling laws than it does at enforcing a zero tolerance policy for CBD in food. Yet, some states have taken a more rigorous approach to ensure compliance.

In Michigan, local health departments have authority over enforcing CBD items on restaurant menus, whereas the Michigan Department of Agriculture and Rural Development (MDARD) has authority over retailers. Health departments in Michigan have been issuing citations to restaurants and cafes offering CBD-infused food and drinks. The citations do not impose any penalty or fines, but rather require the locale to stop any further service of CBD items. However, MDARD has not gone as far as pulling CBD-infused foods and drinks out of grocery stores, like officials in Maine and Ohio.

So, where does this leave restaurants, CBD food companies, and retailers in Michigan?

For now, Michigan cafes and restaurants must abstain from offering their customers CBD options to avoid citations. Likewise, retailers should be aware that MDARD could pull CBD food from the shelves. Companies manufacturing CBD specialty foods and drinks in and out of Michigan can continue to do so at their own risk, but should be aware that shipping these types of products across state lines is currently illegal and could result in FDA enforcement action.

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