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Feds Say Not Legal, But Still It’s Not Rare: Why’s CBD for Sale Everywhere?

In our column’s continuing effort to correct common misconceptions about packaging law, this month we turn to cannabidiol, or CBD.

Eric G

Lots of people are wrong in their current thinking about CBD, but in fairness to them, it’s not hard to see why.

First, many people heard that Congress did something in the most recent Farm Bill that legalized some forms of hemp, but people mistakenly conclude that what Congress did made CBD completely lawful.

Second, CBD products are more prolific than Starbucks, with available information flying around freely about the substance’s touted benefits for treating pain, anxiety, sleeplessness, heart disease, cancer, Alzheimer’s disease, and many other ailments.

All of which leaves the average packager or consumer asking, how can an ingredient be illegal if you can find it everywhere in everything? And what about the fact that so many states have made cannabis and related products lawful for sale in their respective states? Let’s see if I can provide some answers.

The 2018 Farm Bill removed industrial hemp containing less than 0.3% of THC—the stuff in cannabis that gets one high—from the list of “controlled” substances, but, importantly, that didn’t change anything about FDA’s powers to regulate what goes into products such as dietary supplements or drugs, and so far FDA is not persuaded that CBD lawfully can be put into those products.

The question of whether the federal government considers a particular product containing CBD lawful depends largely on whether it’s a food such as a dietary supplement, or a drug, or a cosmetic, or something else, because the legal strictures applicable to each such category differ. For example, it appears that FDA is taking the position that CBD can be added to topical cosmetic products, but if those products feature label claims of effect on the body’s structure or function, FDA could consider them unlawful drugs and not cosmetics.

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