To Eat or Not to Eat: CBD “Edibles” Receive Mixed Reaction from States and Steady Opposition from FDA

Cannabis Business Executive

Gail H. Javitt, Member of the Firm, and Megan Robertson, Associate, in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, co-authored an article in Cannabis Business Executive, titled “To Eat or Not to Eat: CBD “Edibles” Receive Mixed Reaction from States and Steady Opposition from FDA.”

Following is an excerpt:

Gummies, brownies, sodas, cookies . . . consumers have been developing a growing taste for food and dietary supplement products containing cannabidiol (“CBD”) over the last few years as states have moved to legalize cannabis for medical or limited recreational use.  With the passage of the 2018 Farm Bill on December 20, 2018, which legalized the cultivation of hemp for certain purposes, the CBD “edibles” industry appeared poised for further expansion.

However, developments at both the federal and state level during 2019 may put the “edibles” industry on a diet.  At the state level, regulators have struggled to reconcile public health concerns and FDA policy, on the one hand, with consumer demand and industry investment on the other.  The actions by Maine, Ohio, and New York City reflect the tension between these competing priorities.

  • In February, 2019, Maine Department of Health and Human Services officials ordered the removal of any consumable CBD-containing product from store shelves, including conventional foods and supplement-type products (e.g., tinctures, capsules). Subsequent emergency legislation passed in March, however, limited the banned products to those containing more than 0.3% tetrahydrocannabinol (“THC”), the psychoactive component of cannabis and/or that made therapeutic or health claims.
  • The Ohio Department of Agriculture similarly sought to embargo CBD-containing products, but legislation passed by that state’s legislature in July 2019 legalized hemp products, including dietary supplements and food containing hemp-derived CBD.
  • Most recently, New York City’s Department of Mental Health and Hygiene ordered businesses in that jurisdiction to stop selling any foods or drinks with CBD as a food additive; the ban went into effect over the summer, and as of October 1, 2019 violations are subject to fines ranging from $200 to $600.