In 2018, the federal government enacted the 2018 Farm Bill, which legalized hemp and hemp derivatives, including CBD.  The Farm Bill, however, did not regulate CBD and instead acknowledged that the Food and Drug Administration (“FDA”) could regulate those products that were derived from hemp, including CBD.  The FDA has yet to enact formal regulations governing CBD since the passage of the Farm Bill.

In the absence of any federal regulation, some states have begun to enact laws or regulations that govern CBD in food and beverages.  Many states permit CBD in food and drinks that can be consumed by humans or animals.  

According to one news report, FDA Principal Deputy Commissioner Janet Woodcock spoke about the FDA’s concerns and the agency’s efforts to regulate CBD: “Given what we know about the safety of CBD so far, it raises concerns for FDA about whether these existing regulatory pathways for food and dietary supplements are appropriate for this substance.”

As such, in the coming months, the FDA will soon decide how best to regulate CBD products and whether to do so through new regulations issued by the FDA or through legislation passed by Congress.

The Wall Street Journal recently reported that the FDA “is focusing enforcement efforts on products that pose an immediate public-health risk, such as candies that could be accidentally eaten by children, or products meant to be consumed by food-producing animals.”

Depending how and to what extent the FDA decides to regulate CBD products, it is possible that tensions will exist between current state regulations and any federal regulation or law, which could leave some uncertainty in the market.  

A 2021 report issued by the FDA concluded that the CBD market was approximately $4.6 billion and would quadruple by 2026.

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