July 14, 2020

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FDA to Consider Regulation of CBD in Food

Historically, all forms of cannabis—both hemp and marijuana—have been federally designated as illegal substances. That all changed this past December when the President signed the Agricultural Improvement Act (2018 Farm Bill) into law, declassifying hemp as a Schedule 1 substance.

As a result, cannabidiol (CBD)—the non-psychoactive compound found in hemp known for its relaxing and healing properties—has been catapulted into the national spotlight. With the green light from Congress, hemp-derived CBD oils, lotions, and gummies formerly found only in states where recreational marijuana is legal, are now making their way onto store shelves nationally.

This begs the question: what does the undeniable CBD craze mean for the food and beverage industry? Three words: be cautiously optimistic. There is a groundswell of public support for consistency in the regulation of CBD in the nation’s food supply. As a result, lawmakers recently gave the FDA a bipartisan push to make the issue a top priority.

The FDA has responded. Commissioner Scott Gottlieb confirmed that on May 31, 2019, the FDA will be holding its first public hearing “to figure out how to regulate the newly legalized cannabis product.” These early indications that the FDA is willing to consider a pathway towards a nationally regulated CBD market bodes well for the food industry, which is on the verge of unlocking an emerging marketplace category with endless potential.

Even with the FDA’s prioritization of the issue, however, it may take several years for a cohesive regulatory framework to emerge. Indeed, if the newly regulated market for marijuana is any indication, navigating inevitably complex FDA policies applicable to such a dynamic industry in its infancy will be no easy task.

As a result, CBD manufacturers and their food industry partners should continue to stay well-informed of regulatory developments. In the meantime, proceed with caution. Commissioner Gottlieb confirmed that, at least for now, CBD use in food remains prohibited without prior FDA approval, and that the agency will continue to crack down on companies that falsely advertise their products. Moreover, regardless of any potential changes in federal regulation, state laws—including those that illegalize the use of CBD—still apply. We will continue to monitor developments in CBD regulation as they occur.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume IX, Number 119


About this Author

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation...

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...