The past few years have been a wild ride for the hemp-derived cannabidiol (CBD) industry in the United States. Ever since the Food and Drug Administration (FDA) took the position that CBD is illegal in many consumer products, the industry has asked itself many questions about what it can and cannot do. To add fuel to this fire, many states have passed laws and regulations that are different, more complicated, and / or inconsistent with the FDA’s position. Things are complex to say the least.
Life is especially challenging for smokable CBD products. The FDA’s initial positions on CBD did not include smokable products, and as we noted several years ago and again in the past year, it did not seem like the FDA was making explicit attempts to regulate smokable products.
Still, many states have decided to ban smokable hemp and even smokable products like CBD vapes. For example, last year Iowa made the sale of smokable hemp products a serious criminal offense. As another example, a ban on smokable hemp was upheld by a federal appeals court for the state of Indiana last year.
Additionally, during the vape crisis in recent years, many states and communities have proposed and even passed laws restricting flavored vape products. While many of these efforts were limited to nicotine-containing products, not all were, which further limited the sales of CBD vapes in some cases.
There have been some developments recently that put the smokable hemp industry even more at risk. First, the FDA issued warning letters to CBD product sellers, including the seller of an inhalable product. To be fair, it wasn’t a smokable product, but the FDA issued a warning letter for the seller of CBD vapes in 2019. Although the agency has not taken the clearest stance on smokable CBD in its policy papers, it has taken action against sellers of inhalable products, and it seems that it will continue to do so.
In addition, the latest federal funding law, passed just before the new year, contains provisions that severely restrict the way CBD vape products, or even components of those products, can be shipped. A nice summary of these changes can be found in this article. Failure to comply with these new changes could have serious implications and liabilities. This is a major change for CBD vape companies.
Given the trends in the enforcement and regulation of smokable CBD products in recent years, we expect the trend to continue in the years to come. No doubt more states will continue to introduce bans or restrictions, and it is virtually guaranteed that the federal government will put in place more roadblocks. For updates, please visit the law Law Blog.