Regulatory outlook remains gray due to FDA uncertainty and mixed enforcement messages,
CHICAGO — When it comes to the legal status of products containing cannabidiol (CBD), much attention has been paid to what’s happening at the federal level. The 2018 Farm Bill legalized hemp-derived CBD with the caveat that the U.S. Food and Drug Administration (FDA) has oversight. The FDA has stated that CBD is not permitted in food, beverages and ingestible products until the agency creates a regulatory pathway for companies to do so–with no timetable of when that might happen.
Even if the FDA OKed any and all CBD products tomorrow, however, it wouldn’t mean those products would be safe to sell in every state. Each state regulates hemp and CBD differently, creating a patchwork of regulations. Rod Kight, an attorney at Asheville, N.C.-based Kight Law Firm, spends much of his time analyzing these state and local regulations in granular detail for his clients.
“There are state-level regulations that vary all the way from Idaho, which prohibits all CBD sales, to states where you can expressly provide it as a food and dietary supplement,” he told CSP Daily News. “Then there’s a huge swath of states somewhere in the middle.”
Further complicating matters is the fact that it’s not just about the laws on the books–but whether or not those laws are being enforced. Margaret Richardson, chief compliance officer for Tampa, Fla.-based CBD manufacturer Global Widget, a client of Kight, is a CBD authority in her own right. She cited Maine as a good example of one of those contradictory states.
“State law says you can only market edible CBD products if those products use CBD produced in Maine,” she said. “But when you ask, they’ll tell you they don’t enforce that rule.
“There’s a matrix of different considerations for CBD retailers.”
Navigating that matrix requires a lengthy look at what’s on the books, what’s being enforced and the level of risk exposure each retailer is comfortable with. But a good starting point is an examination of what exactly is on the books. Kight and Richardson, working with CSP, said state CBD regulations tend to fall into four categories:
- States with laws allowing CBD sales.
- States that prohibit CBD sales.
- States that allow CBD sales but have labeling requirements.
- A slew of states operating in the regulatory gray area in between.
Kight and Richardson’s analysis (based on implemented state statutes, bills awaiting implementation and rulemaking or pending legislation) shows 15 states where CBD is legal per state statute: Connecticut, Georgia, Illinois, Kansas, Maine, Michigan, Nevada, New Jersey, North Dakota, Oklahoma, Oregon, Tennessee, Virginia, Washington and Wyoming.
There are three states where CBD is illegal per state statute: Idaho, Iowa and South Dakota.
There are 15 states where CBD is legal provided labeling requirements are followed: Alaska, California (bill pending), Colorado, Florida, Hawaii (bill pending), Indiana, Louisiana, Minnesota, New Mexico, New York (pending implementation), Ohio, Texas (pending implementation), Utah, Vermont and West Virginia.
The remaining 18 states either have nothing on the books or have numerous CBD regulations on the books.
Source: Global Widget
Because state and local CBD regulations (and enforcement) are evolving issues with many complicated layers, retailers often find they’re receiving conflicting information on what’s legal or not. To protect themselves, Kight suggests retailers work only with trusted manufacturing partners with their own compliance officers, like Richardson.
“It’s fine to tell them you’re getting conflicting analysis and ask where they got their information,” he said. “If one manufacturer produces some website they Googled and another provides analysis from their lawyer, you should probably trust the second. Treat it like verifying any source.”
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