The passage of the Agricultural Improvement Act of 2018 (commonly known as the “Farm Bill”) has been a boon for hemp and cannabidiol, or CBD oil. However, as members of the hemp industry are well aware, the 2018 Farm Bill and USDA’s Interim Final Rule establishing the U.S. Domestic Hemp Production Program came far from answering all questions surrounding the legality of growing, processing, transporting, and selling hemp and hemp products in the United States. Critically, while USDA’s Interim Final Rule provide hemp farmers with guidance on how to lawfully cultivate hemp, the USDA cannot regulate beyond its authority, which is limited to the production and processing of hemp.
The consumption of hemp and CBD products is under the jurisdiction of the Food and Drug Administration (the “FDA”). The FDA is responsible for regulating all supplements in food, drugs, and cosmetics under the Federal Food, Drug, and Cosmetic Act (FFDCA). Notably, the FDA has not approved CBD as “Generally Recognized As Safe” (“GRAS”) for use in human or animal food*. This means that it is currently illegal to market CBD by adding it to a food, as a drug, or to label it as a dietary supplement.
For organic certifiers tasked with determining whether a particular product qualifies as “organic” under USDA guidelines, the relationship between CBD and organic has become particularly fraught. The USDA has developed instructions on how to certify industrial hemp products, which include CBD, as organic. However, under the FDA’s regulations, CBD cannot be added to food even if hemp derived. This poses a challenge for organic certifiers: can they be held liable for CBD that they have certified as organic, which a third party later adds to a food product or dietary supplement?