As I composed in Part I of this series, the FDA strongly believes that the sale and marketing of most hemp-derived cannabidiol (hemp CBD) products is illegal in the United States and has actually gone as far as describing CBD as a “possibly harmful compound” Part II is dedicated to a quick examination of the state-by-state map of hemp CBD guidelines across the country.
Even though hemp CBD is a no-no for the FDA, states have actually currently embraced their own legal approaches to controling hemp CBD products that are not necessarily consistent with the FDA’s existing position and/or that altogether breach that position.
Some states, such as Colorado and Oregon, enable the manufacture and sale of all hemp CBD products, including foods, dietary supplements, smokable items, and cosmetics. Other states, like Idaho, Iowa, and Mississippi, strictly forbid the production and/or sale of any such items unless hemp CBD is used for “medical treatment.”
A number of states, including California, Michigan, and Nevada, restriction hemp CBD foods and dietary supplements but seem to take no problem, a minimum of expressly, with the sale of other nonfood or nonbeverage items, such as hemp CBD cosmetics. And a handful of states, counting Kentucky and Texas, allow the sale and marketing of hemp CBD foods and dietary supplements but strictly forbid the sale or limit the processing and manufacturing of hemp CBD smokables within their borders.
To top it all off, some of the states that legislated the sale of hemp CBD products have their own set of regulations, including however not limited to registration and/or allowing, labeling, and testing requirements. In Louisiana, for example, hemp CBD cosmetics might only be sold by companies that have established residence for two years prior to looking for and protecting a CBD Dealer Authorization from the Department of Profits, Office of Alcohol and Tobacco Control. In Oregon, any ended up hemp CBD item must be free of particular pesticides and consist of no greater than 0.3 percent total THC before it can be offered to end-use customers. And in Utah, hemp CBD products should fulfill extremely specific labeling and marketing requirements, consisting of but not restricted to, labels containing a scannable bar code, QR Code, or web address linked to a file including information pertaining to the item name, batch identification number, and a downloadable link to a certificate of analysis for the batch determined.
This patchwork of state-by-state guidelines forces makers and suppliers of hemp CBD products to follow a variety of hemp CBD regulations in each state where these products are offered and should limit sales to jurisdictions in which hemp CBD products are considered lawful — all in the face of the FDA’s current enforcement position.
This wide variety of typically conflicting state regulations, integrated with the absence of any official federal legal pathway for the sale and marketing of hemp CBD items, makes it almost impossible for hemp CBD stakeholders to satisfy compliance requirements. Far, the FDA has actually received over 4,00 0 comments from investors on the safety, production, product quality, marketing, labeling, and sale of hemp CBD products. Of course, the states will likely still be free to set their own hemp CBD regulations, but at least everyone would be then be on an even federally legal playing field.
Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Publication, an honor bestowed on only 2.5%of qualified Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (” hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products.
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