TALLAHASSEE, Fla. (March 12, 2020) – On Monday, the Florida Senate passed a bill that would modify the state’s hemp licensing program to ensures the sale of CBD as a food additive can continue. Passage of this bill would not only open up markets in Florida; it would also take a crucial step given the FDA’s continued regulation and prohibition of CBD.
Sen. Bill Montford (D) introduced Senate Bill 1876 (S1876) on Jan. 13. The proposed law amends the current statute regulating hemp to revise the definition of the term “food” to include hemp extract for purposes of the Florida Food Safety Act. In practice, this would ensure food and beverages containing CBD could not be labeled “adulterated” and that the sale of food-based CBD products could continue in the Sunshine State.
On March 9, the Senate passed S1876 by a 40-0 vote.
Last year, Florida Gov. Ron DeSantis signed a bill that clarified hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants, and, “Products containing one or more hemp-derived cannabinoids, including, but not limited to, cannabidiol, intended for ingestion are foods and not controlled substances or adulterated products.” Passage of S1876 would further clarify the law to protect the CBD market.
Prior to the enactment of last year’s law, Florida law did not specifically address hemp-derived CBD, although products containing cannabidiol have been available throughout the state, even before the feds lifted hemp prohibition. Last year’s bill, along with S1876, 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 S1876 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 Florida.
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.
S1876 will now move to the House for further consideration. At the time of this report, it had not been referred to a House committee. Once it receives a committee assignment, it must pass by a majority vote before moving forward in the legislative process.
- To the Governor: Wisconsin Passes Bill to End Support for Future Federal Gun Control - June 24, 2021
- Rhode Island Senate Passes Bill to Legalize Marijuana Despite Federal Prohibition - June 23, 2021
- Signed as Law: Louisiana Decriminalizes Marijuana Possession Despite Federal Prohibition - June 23, 2021