Is my CBD kombucha legal?

PanXchange Blog

Nowadays, CBD seems to be everywhere you go, from your convenience store Kombucha to your local coffee shops CBD latte, but have you ever stopped to think about the legality behind your drink? It might be time.  

The 2018 Farm Bill removed hemp from the Controlled Substance Act (CSA)’s definition of marijuana. However, under the U.S. Food and Drug Administration (FDA), selling beverages or food with CBD added as an ingredient is NOT legal. Everyone in the hemp industry wants the FDA’s approval to get the CBD beverage and food market up and running, but why are there products already on the shelves for consumers?

FDA Guidance on CBD

Currently, the one and only CBD prescription authorized by the FDA is Epidiolex, which treats two severe forms of epilepsy. Although this was and continues to be a significant development for the CBD industry, the FDA lacks understanding and experimentation on essential questions to approve regulations that would allow selling beverages or food with CBD. For example, how much CBD can be consumed per serving size, “how do different methods of consumption affect gross intake per day (e.g., oral consumption, topical, smoking, or vaping), or even what the different effects CBD might have on women?” 

Regulatory Environment 

Under the current FDA rules, Kombuchas sold with CBD are technically illegal, but why do I still see it on the shelf? Here is where the regulatory environment is not black or white. Due to limited resources, the FDA typically only enforces this law when CBD companies make baseless health-claims such as curing cancer or arthritis. 

According to Food Navigator, many in the CBD industry have understood this to mean there is a very low risk as long as they don’t associate their products with health claims. As well, many CBD manufacturers, existing food and drink companies have chosen to jump into the illegal market as they analyze predictions that by 2023 the US market value of beverages and food with CBD additive “is expected to be valued at 1.4 billion U.S. dollars.” Even though there may be a low risk of selling their CBD beverages and food without health claims and a fast-growing consumer demand to take hold, this does not mean a product manufacturer is entirely risk-free of FDA enforcement.  

State by State Regulations 

Then again, to make it less of a black or white situation, there are different laws on the state by state level. Colorado regulates food ingredients, including CBD, but “don’t currently place age restrictions on who can purchase, consume, dose or ingest these products, except when it is combined with other age-restricted commodities (i.e., alcohol or marijuana-infused products).” 

As well, New York, on October 26th, was the latest state to propose an amendment to their CBD beverages and food. The Food Navigator reports that New York State outlined specific dosages: “maximum is 25mg cannabinoids ‘per product’ for food and beverages and 3,000mg per product for dietary supplements.” These regulations will change the CBD market in New York, but notably, this new regulation does NOT apply to your coffee shop around the corner that adds CBD to your coffee at the point of sale. Finally, companies working in these states must comply with their state regulations regarding CBD as a food ingredient and refrain from interstate commerce.

What Does This Mean for the Hemp Industry?  

The demand for the CBD beverage and food market is already present and expanding quickly. Without the FDA’s input, and especially for states that do not have regulations on this topic, the daily intake and dosage per unit are left up to the manufacturer to decide. In the end, the delay in the FDA determination is a self-inflicted wound. While some companies have attained self-affirmed GRAS (Generally Recognized As Safe), one of the major critiques of the hemp-derived CBD industry during the pilot program was that the FDA did not resolve these issues in a prudent amount of time. Prescribed by the Farm Bill 2014 as one of the basic tenants was research to support marketability and safety. The hemp industry is no stranger to a confusing regulatory environment; however, as consumers increasingly demand beverages and foods with CBD, it is time for the FDA to create clear guidance to ensure consumers’ safety.