Despite the acceptance of the 2018 Farm Bill, which legalized the regulated production of hemp, regulations of hemp-derived-or-containing products are still far from straightforward, so much that this legalization can sometimes turn into a double-edged sword, causing manufacturers to unknowingly break the law.
Since hemp-derived cannabidiol (CBD) is now federally legal, and so is regular food, simple deduction will have you believe that food that contains hemp-derived CBD should also be legal, right? Well, not really. Because CBD is an active ingredient in Epidiolex®, the first and only federal Food & Drug Administration (FDA)-approved prescription drug containing CBD, and its medicinal uses were clinically explored before its alimentary ones, the FDA has been adamant that CBD-containing foods and dietary supplements cannot be put into interstate commerce. This is as per the Federal Food Drugs & Cosmetics Act (FFDCA), which hasn’t been enforced too rigorously, but it’s still a law that can get you into trouble for breaking.
If this sounds like a classic case of bureaucracy causing a logistical nightmare, be it for reasons of safety, it’s not you. The paradoxical nature of the situation spurred Senators Ron Wyden and Jeff Merkely to send a letter to the FDA, urging them to update their regulations.
The senators make a very valid and logical point that captures the sentiment of pretty much anyone with any business goals involving food and hemp — that if the FDA themselves removed hemp from the federal list of controlled substances, then their food-related hemp regulations are outdated. This point was accompanied with the request to “[i]mmediately begin updating regulations for hemp-derived CBD and other hemp-derived cannabinoids, and [to] give U.S. producers more flexibility in the production, consumption, and sale of hemp products.”
To solidify the tone of reason and logic emanating from their letter, they ended it with four questions revolving around the lawful steps around this regulatory roadblock and the circumstances that could remove it altogether.
The FDA has answered the letter with some delay, but their response provides few practical answers.
So What Hemp Products for Food Use Are Absolutely Legal?
Right now, the absolutely safe bets are hulled hemp seed, hemp seed protein, and hemp seed oil. They have been deemed as “generally recognized as safe” (GRAS). The United States Department of Agriculture (USDA) has officially stated that the “DEA no longer has authority to require hemp seed permits for import purposes.”
Hopefully in the near future, more hemp-derived products will make their legal way into the food market, leaving regulatory hurdles and paradoxes behind.