This week, state regulators will send letters to businesses that manufacture and sell CBD products warning them that the Food and Drug Administration still considers the hemp-derived compound a drug, and selling any CBD-infused product in food, beverages, pet food, nutritional supplements, or that makes health claims is illegal.
“Once you place products into the marketplace,” the letters say, “you have a responsibility to comply with all state and federal laws. Failure to comply could result in legal action being taken against you, including, without limitation, embargo, seizure, and injunction.”
Despite the ominous language, North Carolina Department of Agriculture assistant commissioner for consumer protection Joe Reardon says that’s all it is—a warning, not a crackdown. But ever since the announcement was reported on February 6, he says, “The phone ain’t stop ringing.”
The state won’t take any punitive actions, he insists. At least not yet.
“This is just an educational campaign to show what the laws are right now,” Reardon says. “What we haven’t done is send anyone out and embargo this stuff like in Ohio and New York. We don’t intend to do that unless something changes.” (The Department of Health in New York City ordered restaurants not to use CBD in their food and embargoed $1,000 worth of CBD edibles at a restaurant last week. A similar situation is playing out in Ohio.)
The news came as a surprise to the Triangle’s CBD sellers. Medicine Mama’s Farmacy in Raleigh sells gummies, hard candies, brownies, as well as lotions, oils, and bath bombs. One of its more popular items is “critter cookies” for pets. Those—along with the CBD-infused foods—could soon be forbidden.
“We’re confused,” says Medicine Mama’s co-owner Jimmie Terry, who is planning to open a storefront next month in Raleigh. “Over the course of the last few weeks, we’ve been working alongside the Department of Agriculture in order to technically be considered the first CBD processors to have their operation inspected and cleared for human food consumption.”
The laws surrounding CBD are anything but clear.
The Farm Bill President Trump signed last year permitted widespread hemp cultivation, reclassified hemp and CBD as agricultural commodities, and allowed the sale of hemp-derived products across state lines so long as they don’t contain more than 0.3 percent THC, the psychoactive element of marijuana. But the FDA had previously approved CBD for use in a drug to treat seizures. Since CBD is classified as a drug, the FDA says it can’t be listed as an active ingredient in products, nor can it be sold or marketed as a dietary supplement or food, and businesses aren’t allowed to promote its health benefits. In December, the FDA issued a press release asserting its right to regulate cannabis and cannabis-derived products.
But FDA regulations cover only interstate commerce. Medicine Mama’s website boasts of using North Carolina hemp, and state law allows for CBD derived from hemp “produced and used in compliance with the rules issued by the North Carolina Industrial Hemp Commission.” On the other hand, as the letter going to CBD sellers notes, “North Carolina has routinely adopted by reference the federal Food, Drug & Cosmetic Act and implementing regulations. The violation of these federal regulations would equally be a violation of state laws and regulations.”
“North Carolina-produced CBD put into food products is not illegal,” Blake Butler, the executive director of the hemp association, told the INDY Monday. “But there’s nothing to say that it’s legal.”
That’s not quite correct, according to Reardon: “CBD is now a drug, and you can’t infuse a drug into a food product. We’re seeing CBD being infused into gummy bears, lollipops, ice cream, all things traditionally consumed by children. That’s our main concern.”
It also contradicts what Reardon said in a press release Friday: “North Carolina laws mirror federal laws. This means that CBD cannot legally be added to any human food or animal feed that is for sale,” nor can a CBD product make health-related claims. Stores will still be able to sell tinctures of CBD or hemp extract.
Again, Reardon continued, the goal is education, not punishment. “We are taking an educate-before-regulate stance with industry,” he wrote. “We know they may not be aware of the state laws regarding the addition of a drug to a food product. However, we reserve the right to be more assertive, as other states have been, if we need to be in the future.”
Butler hopes the state’s approach will at least help clarify the rules.
“We have over seven hundred growers in our state right now who want to do right,” Butler says. “We are really trying to work with these guys in Raleigh. We have reached out to state officials and plan to work with them as we figure out how to bring clarity to some of the gray areas. We plan to adopt best practices and standards in our state so North Carolina is a safe haven for hemp and CBD.”