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The Labeling Paradox: Navigating Between Hemp, Hemp Extract, and CBD Products

Even though the Food and Drug Administration (“FDA”) has come out against the sale of CBD-infused foods and dietary supplements, a cursory search for “CBD” on Amazon reveals a plethora of hemp extract and hemp oil products, including gummies, tinctures, creams, and capsules. Because of the FDA’s prohibition on the sale of CBD-infused foods and beverages and the recent shift in federal law to legalize hemp and hemp products, manufacturers and marketers alike have latched on to the buzzwords “hemp” and “hemp extract” to sell CBD products. But, from a consumer’s perspective, what is the difference between a 1000mg, 50,000mg, and a 400,000mg product? Most likely, not a whole lot.

Hemp-food products (like milk and oil) have been sold in grocery stores for decades. These products are typically made from the seeds of the hemp plant, contain no CBD or THC, and therefore, are specifically excluded from the definition of “marijuana,” which remains a prohibited Schedule 1 drug. While “hemp” is a plant, with seeds, stems, and flowers, “CBD” is a specific compound derived from hemp flower.

The explosion of the CBD industry and lack of clarity/inconsistent regulatory framework has resulted in misleading and mislabeled products dominating the space. For example, Amazon maintains that CBD products are banned from being sold on its marketplace; however, one can find and purchase thousands of “hemp extract” or “hemp oil” products.

Consumers equate “hemp extract” and “hemp oil” with CBD, but do not realize these products are made from hemp seed oil, not from hemp flower, and as such contain virtually zero CBD or any other therapeutic cannabinoid compound.

The FDA and DEA have perpetuated this misconception by motivating authentic CBD manufactures to use vague/gray-area terms like “hemp extract” or “hemp oil” in order to avoid enforcement actions. And while consumers can find authentic CBD products labeled as “hemp extract” or “hemp derived,” consumers would need to look and understand the ingredients listed and the claimed dosage amounts.

There are tens of thousands of CBD and hemp brands operating across the US. While many are trying to play by the rules and release quality products with clear, transparent labels, there are many who are content misleading customers regarding the nature and contents of their products in order to make a profit. The proliferation of the CBD wholesale market (extractors, bio-mass dealers, white-labelers, etc.) means that more often than not there are a dozen plus individuals and organizations in the supply-chain between the cultivated hemp and the end consumer. Naturally, this creates opportunities for abuse and deception: many well-intended retailers and brands think they are selling a high quality, CBD-rich product, but the capsules and vials they sling are likely filled with nothing more than hemp-flavored olive oil.

As for best practices, consumers should look for Certificates of Authenticity and ask for lab reports in order to be confident in the products they are buying. Do not be fooled by claims of high potency (500,000 mg, etc.), but rather pay attention to the list of ingredients and look for information pertaining to the nature, quality, and source of the hemp used.

This blog was co-authored with Jacob Sky, Co-Founder of Sky & Wyatt, a hemp and CBD tea company operating out of Boulder, Colorado. Jacob holds degrees in Public Policy and Behavioral Psychology from Harvard University.

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About this Author

Gene Markin Attorney Stark & Stark Law Firm
Shareholder

Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage...

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