Trick question: What is the difference between hemp seed oil and CBD? (psst one is legal)

Two Michigan regulatory agencies announced in guidance that selling CBD-infused food and drinks, or as a dietary supplement, is illegal, however, using hemp seed oil to infuse food and drinks is legal. Why?

In guidance issued Friday, March 29, 2019 by the Bureau of Marijuana Regulation and the Michigan Dept of Agriculture & Rural Development, they noted that the Food and Drug Administration (FDA) has not approved CBD in food or beverages or as a dietary supplement. Without FDA approval, selling these products in Michigan is illegal.

Other states have issued similar guidance. Washington State noted in December that CBD infused alcohol is illegal as it must be approved by the US Tax and Trade Bureau. In August, Ohio noted in that only licensed medical dispensaries could sell CBD oil so long as it had been tested by an Ohio licensee. Michigan has similarly indicated that CBD used in edible marijuana products must be sourced from growers or processors currently licensed in the state.

This news is alarming given the vast number of CBD-infused food, beverage, and dietary supplement products that are currently in the marketplace.

Certain states, such as Maine, are trying to fix this problem by enacting legislation to clarify that products infused with CBD are not adulterated, and may be sold in that state without FDA approval. This legislation may not be able to protect nationwide distributors that engage in interstate commerce.

Hemp seed oil can be used though, as it is currently on the FDA’s list of products considered generally regarded as safe. However, since it does not contain cannabinoids, consumers may not find it as beneficial to their health.

So what would stop unscrupulous industry participants from relabeling CBD products as hemp oil? Not much. The industry is in a grey zone right now with more stringent regulation right around the corner. CBD is not yet subject to rigorous testing or labeling requirements. A CBD manufacturer can presently obtain a certificate of analysis without testing the product for cannabinoids.

CBD producers considering this route should consider the serious consequences including criminal charges, product seizures and civil fines. A greater consideration is the industry’s credibility. The industry should consider how it can mobilize, and work with the regulators to address this issue before the enforcement process begins.

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