CBD Edible Product Crackdown: What’s Next for Washington Retailers and Restaurants

Published February 28, 2019 

The Agriculture Improvement Act signed into law by President Trump in late 2018 legalized hemp at the federal level, providing an additional jolt of energy to what was already a $1 billion industry. Hemp-based beauty and personal care products, textiles, building materials, paper, food, and beverages are already making their way onto the shelves of major retailers like Costco, Walmart, and CVS. The new federal legislation was handed down on the heels of several states voting to legalize cannabis in the November 2018 midterm elections.

The legality of edible products infused with the popular hemp derivative cannabidiol (“CBD”) sold at retail is still questionable, however. The U.S. Food and Drug Administration recently issued a press release in which Commissioner Gottlieb stated that it is “unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.”

Now, local health officials are starting to enforce the FDA statement, even in states where cannabis is legal. New York City’s Department of Health recently issued a statement that it will fine restaurants selling CBD-laced food and drinks, and California’s Department of Public Health has reported that “CBD products are not an approved food, food ingredient, food additive, or dietary supplement.”

In Washington, CBD products are not regulated by the state Liquor and Cannabis Board unless they are added to an already-regulated marijuana product, which state law defines as any product containing more than 0.3 percent tetrahydrocannabinol (“THC”), the compound in marijuana responsible for psychoactive effects (CBD, on the other hand, is non-psychoactive). Washington law specifically defines “marijuana” to exclude industrial hemp. That likely leaves state-level enforcement of the FDA’s recent press release up to the Washington Department of Health and county health officials. In April, King County and Kitsap County Public Health Districts issued cease and desist letters to a local business selling CBD-infused lattes. Skagit County Public Health officials recently advised retail food establishment permit holders that “no food or beverage containing CBD or CBD oil is approved for retail sale at food establishments in Skagit County,” and that violators will find their products “placed under a hold order pending return to the distributor.”

Those seeking to capitalize on CBD’s growing popularity should know that these bans are likely temporary. The FDA’s press release indicates that it “recognize[s] the potential opportunities that cannabis or cannabis-derived compounds could offer,” and will pursue an efficient regulatory framework for CBD producers to lawfully market their products. The department plans to hold public hearings in the near future to gather input relevant to its regulatory strategy. Members of Congress from across the country and both political parties have urged the FDA to swiftly provide a legal pathway for food products infused with CBD and resolve the confusion now besetting farmers, manufacturers, retailers, and consumers alike.

In light of the still-evolving legal status of CBD-infused food and beverages, retailers and distributors are advised to keep a watchful eye on upcoming laws and regulations for now. Confronted with an industry which is expected to be worth $20 billion by 2022, officials will need to work quickly to provide restaurants and other food purveyors with a legitimate seat at the table.

Maddie Davis is an attorney in Ryan Swanson’s Food & Beverage Group and can be reached at [email protected]