To the Governor: Virginia Bill Would Legalize CBD in Food Despite Ongoing FDA Prohibition

RICHMOND, Va. (Mar. 18, 2020) – Last week, the Virginia Senate gave final approval to a bill that would create a regulatory program for the manufacture of hemp extract and CBD products for human consumption and would ensure continued availability of CBD products in the state. This would not only open up markets in Virginia; it would also take a crucial step given the FDA’s continued regulation and prohibition of cannabinoid.

Del. Wendy Gooditis (D-Boyce) introduced House Bill 1430 (HB1430) on Jan. 8. Under the proposed law, industrial hemp extract would be legally classified as a food and would be subject to regulatory requirements established by the bill.

On March 12, the Senate passed HB1430 by a 40-0 vote. The House previously passed the measure by a 95-4 vote. The bill now goes to Gov. Ralph Northam’s desk for his consideration.

HB1430 does not have specific rules about how CBD can be used in food and beverages, but it gives broad rule-making authority to state agencies.

Currently, Virginia law does not specifically address hemp-derived CBD as a food additive, although products containing cannabidiol are available throughout the state. Enactment of HB1430 would ensure the state would continue to allow the sale of CBD and CBD products, and would allow the CBD market to continue to grow and flourish. This is crucial because despite removing the plant from the list of controlled substances late last year, the federal government still prohibits the sale of CBD products under FDA rules.

2018 Farm Bill and CBD

With the passage of the farm bill, the federal government now treats industrial hemp as an agricultural commodity instead of a controlled substance. While the DEA will no longer have the authority to regulate hemp, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, the passage of the farm bill does not mean CBD is now federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

To date, the FDA has only approved one medication with cannabidiol as an active ingredient – Epidiolex for the treatment of seizures. But the FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, that designation means the FDA maintains full control over the substance and it cannot be marketed as a “dietary supplement.” The agency also maintains that the sale of CBD or any food products containing the substance is illegal.

“It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”

The FDA held its first public meeting relating to CBD in May 2019. FDA principal deputy commissioner Amy Abernethy said there is a need to “further clarify the regulatory framework to reduce confusion in the market,” and “Key questions about product safety need to be addressed. Data are needed to determine safety thresholds for CBD.”

The FDA evaluation process is ongoing. In March 2020, FDA Commissioner Dr. Stephen Hahn delivered a report to Congress on CBD.

“FDA is currently evaluating issuance of a risk-based enforcement policy that would provide greater transparency and clarity regarding factors FDA intends to take into account in prioritizing enforcement decisions. Any enforcement policy would need to balance the goals of protecting the public and providing more clarity to industry and the public regarding FDA’s enforcement priorities while FDA takes potential steps to establish a clear regulatory pathway.”

Meanwhile, the FDA is reopening a public docket to solicit additional scientific information about the risk and benefits of the cannabis compound.

According to NutraIngrediants.com, food and dietary supplement industry stakeholders said the report offers “little hope of a timely regulatory solution.”

In effect, the agency can continue to prohibit the sale of CBD and its addition to food and beverages even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

Enactment of HB1430 would further open the door to the production and sale of CBD products produced in the state regardless of continued federal prohibition.

Without state cooperation, the FDA will likely have trouble regulating it in Virginia.

Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

WHAT’S NEXT

Gov. Northam will have until April 11 to sign or veto HB1430. If he takes no action, it will become law without his signature.