We’ve written a lot about FDA’s current position on CBD in food and the ongoing process to evaluate a potential non-drug pathway for the ingredient that emerged seemingly out of nowhere to capture the attention of consumers, legislators, and regulators alike.  While we all wait for FDA to announce an update to its review, states continue to push forward… in seemingly divergent directions.

On July 19, 2019, New York State’s Department of Agriculture and Markets (the “Department”) issued a letter clarifying its position on the inclusion of cannabidiol (CBD) in food products.  The Department plainly stated, “No food or beverage product may be made or sold in New York State if it contains CBD as a food, a food additive or an ingredient.”  The Department also warned that any food or beverage products found to contain CBD are considered adulterated and subject to enforcement actions that may include (1) voluntary removal of products, (2) seizure and/or destruction of products, or (3) issuance of a fine and/or a failing sanitary inspection.   The letter is apparently intended to clarify whether New York City’s ban on CBD in foods applies to the rest of the state.  The question now is to what degree the Department’s position will be enforced.

Conversely, on July 30, 2019, Ohio Governor Mike DeWine signed into law Senate Bill 57 to legalize hemp and hemp-derived CBD oil.  Under the new law, individuals in Ohio may possess, buy, or sell “hemp” or a “hemp product” without a license.  A “hemp product” includes dietary supplements or food intended for animal or human consumption, among other items.  The law also clarifies that the “addition of hemp or a hemp product to any other product does not adulterate that other product.”  While Ohio’s position is in contrast with FDA’s (and that of other states), a number of states expressly allow CBD in foods and in dietary supplements per their state laws.

For companies marketing or selling CBD in any product, the lesson is this:  While there is continuing uncertainty regarding CBD’s non-drug pathway at the federal level, the states (and even some cities) remain an evolving patchwork.  Prior to marketing, state by state and product by product analysis may be necessary to fully understand the risks.