On July 22^nd, FDA submitted a draft guidance entitled “Cannabidiol Enforcement Policy” to the White House Office of Management and Budget (OMB) for review. While the details are unknown, some in the industry have speculated that the policy will address dietary supplements only, and that additional guidance on CBD in food may come at a later time. As we’ve previously reported, in its March 5, 2020 report to Congress FDA hinted that an enforcement discretion policy was in the works. That report also focused heavily on FDA’s evaluation of CBD use in dietary supplements, with very little discussion of CBD use in food.

This news comes as the number of states that allow hemp and CBD in both dietary supplements and food continues to grow. In the absence of clear direction from FDA, over the past year the states have become the primary regulators of CBD and hemp food products, with a variety of approaches that include labeling, testing, and registration requirements, as well as limits on product form.To date, the list of states that permit the use of CBD in dietary supplements and food includes at least twenty one states:

• Colorado

• Connecticut

• Florida

• Hawaii (certain forms of dietary supplements only; pending Governor’s approval)

• Indiana

• Iowa  (subject to forthcoming rules)

• Maine (must be produced in Maine)

• Nevada (subject to forthcoming rules)

• New Jersey

• New Mexico

• Ohio

• Oklahoma

• Oregon

• Rhode Island

• Tennessee

• Texas

• Utah (certain forms of dietary supplements only)

• Vermont

• Virginia

• West Virginia

• Wisconsin (must be sourced from and produced in Wisconsin)

While we know this is a lot to digest, the bottom line is that even if FDA’s forthcoming enforcement policy is silent on CBD use in food, we expect states will continue to enact laws permitting CBD and hemp food products. 

One notable state missing from the list is California, but we’ve heard legislation to permit the use of hemp-derived CBD in food (provided testing and labeling requirements are met) is inching closer to approval. Similar legislation is also pending in Massachusetts and several other states, and the industry is eagerly awaiting rulemaking in New York that will clarify whether CBD can be used in food and the conditions for such use.

As always, please reach out to, Amin Talati, if you have any questions!