CBD products, from coffee to condiments and cosmetics

Cannabidiol (CBD) sales are in a strange place. While a newly inked U.S. Farm Bill removes industrial hemp and its derivatives from a list of federally controlled substances, CBD sold as a food or dietary ingredient is still prohibited under federal law. And yet, the market is flush with companies selling CBD foods and dietary products.

Why are companies selling CBD products when federal law prohibits it?

It’s a matter of selective enforcement, says Justin Prochnow, attorney at Greenberg Traurig LLC (Denver). “To date, the FDA has sent out approximately 20–25 warning letters and, in every instance, the FDA addressed unauthorized disease claims in addition to taking the position that CBD is a non-permissible ingredient,” Prochnow told Nutritional Outlook. For many CBD manufacturers, the potential financial gains are worth what seems like minimal risk, so long as products aren’t making disease claims.

FDA Commissioner Scott Gottlieb hinted at a potential legal path for CBD in a statement published on the same day as the Farm Bill’s passage. The situation looked even more promising in January when Oregon Senators Ron Wyden and Jeff Merkley wrote to Gottlieb and FDA urging the agency to change federal CBD regulations for foods, beverages, and supplements in order to “give U.S. producers more flexibility in the production, consumption, and sale of hemp products.”

For now, though, all industry can do is wait and hope for a new legal development or proceed with risk.

The Council for Responsible Nutrition (CRN; Washington, DC), which represents dietary supplement product manufacturers across the U.S., has made legal opinions on CBD available to its members, but it’s not outright encouraging companies to get in the business of CBD. “We aren’t making recommendations to our members about what they should do,” CRN president Steve Mister told Nutritional Outlook. “They have to make their own business decisions as to how much tolerance for risk they have in the marketplace.”

Many CBD product manufacturers are taking the risk by entering the marketplace now. With that risk, they have a chance to build profits and brand following before there’s extra competition. Let’s look at some of the product platforms they’re using.