The 2018 Farm Bill removed hemp from the Controlled Substances Act did not affect or modify the Federal Food, Drug, and Cosmetic Act (FDCA) or the Food and Drug Administrations (FDA) ability to promulgate regulations and guidelines that relate to hemp under. The FDA regulates a wide variety of medical and consumer products sold in the United States including food, drugs, dietary supplements, medical devices, cosmetics, and tobacco products.

The FDA has approved of the use of CBD in the prescription drugEpidiolex. As a result, the FDA has indicated in press releases, enforcement letters, and its website that Hemp CBD cannot be used in foods, beverages, or dietary supplements. This is because under the FDCA, any article that is investigated as a new drug cannot be used in food, beverages, or dietary supplements, unless the article was widely marketed in those products prior to the drug investigation.

In addition, the FDA has taken a hard line against Hemp CBD in unapproved drugs. The FDA determines whether something is a drug based on its intended use, and determines a products intended use, in turn, based on how it is marketed. If a manufacturer or distributor makes any type ofhealth claim(CBD cures cancer or CBD may treat inflammation) or human structure claim (CBD may increase levels of calcium in bones) about a product that the FDA has not investigated and approved as a drug, the FDA will consider it a drug. Foods, ingredients in foods, drugs, and dietary supplements are all subject to premarket FDA approval.

RELATED: Federal Policy On Hemp CBD Is Taking Shape: What Needs To Be Addressed?

The FDA also regulates tobacco and nicotine tightly but does not have clear regulatory authority ofsmokable hemp products, such as dried flower, e-liquid and vape pens. Thats because generally, these products dont contain any tobacco or nicotine. To clarify, the FDA likely could have regulatory authority over these products, but it hasnt established a clear jurisdictional hook.

Though the FDA is a federal agency, its policies have a significant impact on the states. Some states have aligned themselves with the FDAs position. Others have taken a more permissive approach. Many states have provided little to no guidance on the subject of Hemp CBD.

Almost 90 years ago, in 1932, Supreme Court JusticeLouis Brandeiswrote a dissenting opinion inNew State Ice Co. v Liebmann, which contained this timeless passage:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

This concept of states as laboratories of democracy remains a happy incident of our federal system to this day. States can experiment with their own laws without subjecting the citizens of other states to the related risks (or, including them in the upside).

Photo by TinaKru via Pixabay

Experiments are complicated and require close observation. That can be tough when you have 50 laboratories of democracy all operating at once. Over the past few years, states have been experimenting with how to regulate products containing Hemp CBD. This has resulted in a complex system of inconsistent policies on Hemp CBD. For businesses that are distributing Hemp CBD products across the country, it seems that these laboratories of democracy have created a logistical monster.

RELATED: The Latest Report From The FDA Shows How Poorly It Has Handled CBD

Our attorneys have watched this play out in real-time and in doing so, developed a method to track how each of the fifty states treat Hemp CBD. Our approach is to answer the following questions for each state:

Guided by these seven questions, we developed a Hemp CBD risk matrix that covers all fifty states and is updated each month by a team of Harris Bricken attorneys. We look at each of the seven questions for every state and update the risk matrix accordingly.ClickHEREto download a sample of the risk matrix.

The matrix provides a snapshot of each states laws, regulations, and policies regarding Hemp CBD products. By simply updating a website or issuing a memorandum, a state regulator can totally change the legal landscape for Hemp CBD products overnight. In addition, both the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) are actively working on regulations and policies that could impact the states.

The risk matrix can help your business with the following:

If you are interested in purchasing the Hemp CBD Risk Matrix, you can do so entirely online through thispage. You can also email me directly at daniel@harrisbricken.com to learn more about the risk matrix.

In addition, below are links to each post from our Hemp CBD Across State Lines series which covered each of the 50 states, as well as certain U.S. territories and Tribes. Unlike the risk matrix, which is updated monthly, these posts may be out of date due to the fast-changing nature of this industry.

States, Territories and Tribes

Daniel Shortt is an attorney atHarris Bricken. This article was originally publishedon theCanna Law Blog and has been reposted with permission.

See the rest here:

The Laws And Regulations On Hemp CBD In All 50 States - The Fresh Toast