It’s already happened in New York and California. Now Washington state has announced a ban on hemp-derived CBD in food and beverage products as the FDA weighs how to regulate the popular cannabinoid.
The regulations won’t affect CBD products sold through licensed cannabis retailers, which are allowed under the state’s separate cannabis system. But the ban outlaws all sorts of products that currently are widely available at grocery stores, bars, coffee shops, restaurants, and more.
Whether the products are going anywhere is another story.
The new state rules banning CBD as a food ingredient took effect Aug. 1, and the state Department of Agriculture, which regulates hemp products, is working to spread the word.
Steve Fuller, Food Safety and Consumer Services, Washington Department of Agriculture
But even with the ban in place, it’s not clear that CBD food and drinks will disappear from store shelves anytime soon. Other jurisdictions that have banned CBD ingredients have had little success keeping them from consumers. And Washington officials are signaling that enforcement efforts will begin gently, not as a crackdown but as an “outreach and education” campaign—at least for now.
“That’s always the preferred approach,” said Steve Fuller, assistant director of the Food Safety and Consumer Services division of the Washington State Department of Agriculture. “As processors and distributors learn that this is not legal either federally or within the state, most of them will do the right thing and figure out a way to come into compliance around that.”
Wait, Didn’t the Farm Bill Just Legalize CBD?
Sort of, but not exactly. The 2018 farm bill legalized hemp and its products under federal law, but whether CBD may be used legally as a food product is now a question for the US Food and Drug Administration. The FDA is currently considering that question and expected to issue rules in the coming months, but for now it’s a no-go.
“Part of the challenge here is just overcoming misinformation around what the impacts of the 2018 farm bill were and people not understanding exactly what the regulatory environment is,” Fuller told Leafly.
“If the FDA waves its magic wand tomorrow,” he added, Washington state’s ban might also disappear. “We’re not saying we want to move aggressively in this space regardless of FDA. We do think we’re in alignment with FDA on this.”
What Will Enforcement Look Like?
That’s a tricky question to answer. Enforcement responsibilities are split, with the Department of Agriculture regulating producers and warehouses and individual county health departments regulating retailers.
“Our first goal would be outreach and education,” Fuller said of enforcement on the production side. Some manufacturers may be able to avoid legal obstacles through measures as simple as changing their labeling. “Our plan is to work with those operations that have created products that don’t align with FDA guidance.”
Whether the new ban includes tinctures, for example, may be a matter of what a particular product’s instructions say.
“If the packaging says, ‘Hey, put one drop in your milk,’ then it’s clear that that’s intended for food use,” Fuller said. “If it just said ‘CBD-infused oil,’ I think that’s sort of ambiguous that that’s a food and wouldn’t fall under this particular statement.”
The agency’s enforcement actions could grow more aggressive if companies refuse to change their ways, Fuller said. “If we do have some that just continue to wait and see whether enforcement will occur, then I think we’ll have to move more aggressively.”
On the retail side, enforcement is likely to be more unpredictable. With 39 counties in the state, health departments could take a range of different approaches. Some could conceivably crack down hard, while others may take a more laid-back approach.
For its part, King County Department of Public Health is “working to better understand the emerging issue of CBD in food and beverages,” a representative told Leafly via email. Asked about the agency’s approach to enforcement, the department issued the following response:
Public Health – Seattle & King County enforces the Washington State Retail Food Code, which prohibits the use of unapproved food additives, such as CBD, in food and beverages. The U.S. Food and Drug Administration does not recognize CBD as an approved food additive at this time. Until the U.S. Food and Drug Administration approves CBD as a food additive and provides guidance to state and local health authorities, CBD will continue to be a prohibited additive in food and beverage products in King County. At Public Health, we are currently working to better understand the emerging issue of CBD in food and beverages.
A representative for King County’s health department later added that the agency believes there’s been significant misinformation among restaurants and the general public about the legality of CBD in food products. “We will be educating operators about existing federal and state rules, and going forward, inspectors will tell operators as part of our routine inspection visits that they may not sell products that include CBD,” the representative said. The department has since updated its website to include a notice about the new rule.
It’s hard to imagine the rule change getting rid of CBD-infused food and drinks entirely—at least using history as a guide. Even when Texas deemed CBD possession a felony—a law that changed only months ago—CBD-infused honey was available at nearly every coffee shop and espresso cart in town. In virtually every jurisdiction that has attempted to limit CBD, regulators have found themselves going after individual actors while the market continues to grow.
Can I Still Legally Buy CBD Food and Drinks?
Yes, actually, but you’ll need to be 21 or older. Under the state’s cannabis law, CBD-infused edibles are just as legal under state law as THC-infused ones. But they must be sold in stores licensed to sell cannabis products. So if CBD-infused edibles do eventually disappear from corner stores and coffee shops, there’s always the nearest cannabis shop.
“I would expect that there will continue to be CBD products within that space as there has been all along,” Fuller said. The ban on CBD in food and drink, he explained, “is intended to be our traditional food processor licenses and food warehouse licenses. It was not intended to say anything about that whole separate, I-502 sales-of-marijuana system.”
Will This Affect Pet Food?
Believe it or not, yes. “Just like for human food, CBD is not an allowed ingredient in commercial animal feed, including pet food,” said Fuller. “There’s a fairly complex approval process for ingredients in animal feed.” (For anyone curious, FDA has a whole section on how the agency regulates animal food and feeds.)
This All Seems a Little Incoherent
It does, doesn’t it? Washington state legalized the sale of cannabis-infused food and drinks with the passage of I-502 back in 2012. The first adult-use stores opened in 2014. That state-legal activity, which has grown into a full-fledged industry, remains illegal under federal law.
Yet somehow the passage of the 2018 farm bill, which finally legalized hemp and its products nationwide, may actually make it harder to legally obtain the non-intoxicating cannabinoid—at least unless you go to an even more federally illegal store that also sells THC.
Needless to say, all eyes in the CBD industry are on the FDA. The agency is expected to issue further rules on CBD later this year, which could push Washington regulators to revisit the food-and-drink ban.