States Lead the Way in Regulating CBD-Infused Products

December 17, 2019|11:18 a.m.| ASTHO Staff

These days it’s almost impossible to walk by a pharmacy or retailer without seeing an advertisement for CBD products. As cannabidiol (CBD)-infused products (such as oils, pet treats, and food) continue to grow in popularity, this has prompted states to introduce oversight of CBD products. Issues around CBD products became murkier after the 2018 federal farm bill allowed the production and sale of industrial hemp and hemp-derived products, while also explicitly preserving the Food and Drug Administration’s (FDA) authority to regulate products containing CBD.

While retailers continue to tout therapeutic benefits of CBD products for health issues such as joint pain, insomnia, depression, and even cancer-related-symptoms, research is lacking or limited in supporting these claims. The few studies that do exist shows that CBD has potential to impact anxiety and epilepsy, but more research is needed.

States are beginning to regulate CBD-related products through legislation and agency rulemaking. Much of the oversight is frequently placed with the state departments of agriculture, and often classifies CBD within a broader definition of hemp-based products. However, some states are incorporating their state health agencies in the regulatory efforts and making specific provisions for CBD-infused products. Below is an overview of how Louisiana, Maine, Nevada, and Texas have all moved to provide their state health agencies with the authority to regulate certain aspects of CBD-infused products.

In Louisiana, a new law (HB 491) requires that any CBD product made or sold and any retailer who sells these products in the state be registered with the state health agency and adhere to testing and labeling requirements. The Louisiana statute also prohibits the production and sale of food or beverages containing CBD, including in low-risk foods known as “cottage foods.” The Louisiana Department of Health adopted emergency rules that include providing a list of registered products to the state’s alcohol and tobacco control office, law enforcement, and other appropriate entities. The health department also issued rules for the registration, labeling, and laboratory analysis of CBD products and will develop an information web page for industrial-hemp-derived CBD products. Finally, the Louisiana Office of Alcohol and Tobacco Control also enacted emergency rules allowing for permitting CBD retailers in September 2019.

Maine enacted a law (LD 1749) to allow the production and sale of food containing hemp or CBD derived from hemp, if it meets certain labeling or signage requirements. Guidance has also been issued for state agencies that conduct food inspections, which include enforcement guidelines of the new requirements for state food inspectors. Additionally, any ingestible CBD products sold in Maine must be produced in Maine, otherwise they would run afoul of the FDA’s prohibition against CBD-infused food being introduced into interstate commerce.

In Nevada, a new law (SB 209 and AB 533) allows for the sale of properly tested and labeled hemp and CBD-containing products intended for human consumption (i.e., intended for ingestion or inhalation by a human or for topical application to the skin or hair of a human). The statute also directs the Nevada Department of Health and Human Services to develop rules for testing and labelling CBD products. The agency’s rules are being drafted.

Texas enacted a new statute (HB 1325) that lays out allowances and restrictions for consumable hemp products and describes laboratory testing, packaging, and labelling requirements. It also mandates that manufacturers of consumable hemp products be licensed by the state health agency. The bill allows out-of-state products to be sold, but only if those products have been tested in accordance with or similar to Texas requirements. Texas Health and Human Services was accepting public comments on future rules until Tuesday.

With more states moving to regulate CBD products, ASTHO anticipates that there will be more oversight to protect the public health while CBD research continues. As the states above illustrate, state health agencies do play a role in this issue. ASTHO has compiled a table with additional examples of state oversight of CBD-infused products to best inform state and territorial health departments. State and territorial health agencies are well-positioned to utilize their expertise and partnerships to educate policymakers and pursue appropriate policies for CBD products. ASTHO will continue to monitor legislative activity and trends on this important public health issue.