Rival bills aim to establish a pathway to the US market for ingestible CBD

US representatives have introduced a bill into the House aiming to push the US Food and Drug Administration (FDA) to regulate CBD in food and drinks.

If passed, the CBD Product Safety and Standardization Act would create the conditions to allow the use of CBD as an ingredient in ingestible products with the exception of dietary supplements, for which further regulatory hurdles would first have to be cleared.

CBD is currently barred from being marketed as a food or drink ingredient because it is the active ingredient in an FDA-approved drug, which brings with it prohibition under the Food, Drug, and Cosmetics (FD&C) Act.

The new bill aims to streamline CBD guidelines for the cannabinoid industry while keeping unsafe products off shelves and protecting consumers. Under the new act, if passed, FDA regulation of CBD would require:

  • Food containing CBD to pass safety requirements determined by qualified scientific experts and to comply with the Fair Packaging and Labeling Act
  • Maximum amounts per serving to be established
  • Food containing CBD to be subject to labelling and packaging requirements, including stating conditions of intended use.


Cross-party support


The House bill is an updated version of one put forward by the US Senate, which introduced its own CBD regulation bill earlier last year. The Hemp Access and Consumer Safety bill is much more broadly written and would cover virtually all kinds of cannabinoid ingestibles, including CBD dietary supplements.

The Senate bill would allow “hemp, hemp-derived cannabidiol, or a substance containing any other ingredient derived from hemp” as food and dietary supplements. Given how far producers have pushed the definition of hemp alone, one criticism of it is that it could prove far too broad.

On the other hand, the overall sweep of the Senate bill is more comprehensive than that of the House bill and would allow for wider business opportunities as well as streamlined regulation. However, the House version could be more palatable to those not fully committed to allowing CBD as it would appeal to any reservations about dietary supplements.

Both bills enjoy some cross-party support. The Senate bill now has three co-sponsors, two Democrats and prominent Republican Rand Paul of Kentucky. Support from Paul is arguably unsurprising, given the continued importance of hemp to the Kentucky economy. It remains to be seen, however, whether Paul, always considered something of a maverick, will have much influence with his Republican colleagues.

The House bill has five co-sponsors, representing both parties and a fairly broad geographical area. However, that backing pales in comparison with another bill with a similar purpose. The Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2021 now has 36 co-sponsors across both parties and a wide geographical spread. This suggests it could have a decent chance of making it to and then through a floor vote – though it would then still have to pass a vote by the Senate.

It is difficult to say how likely any of these bills are to pass. So far the issue of CBD regulation by the FDA has been thrown back and forth like a bargaining chip – added to various other bills as a rider before being removed.


Does hope lie in legalisation of cannabis?


The Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act was introduced in February 2021 and has not made it through a single committee. This suggests a lack of motivation within the House to make a legal pathway for CBD.

However, depending on the details of the bill passed, federal legalisation of cannabis could help ease a path for CBD to become legal as a food ingredient and/or dietary supplement. An act such as the SAFE Banking Act might perhaps have aided the passage of one of the hemp bills.

It appears unlikely that it will pass this year, though pressure may emerge on Democrats to make some form of cannabis reform before the mid-term elections, when the loss of one chamber is likely. The SAFE Banking Act would be the easiest to pass.

Otherwise, similar legislation may provide the spark. For example, the States Reform Act was introduced by Republican congresswoman Nancy Mace of South Carolina as a response to the Democrat-backed MORE Act. The Republican-sponsored act would “federally decriminalise cannabis and fully defer to state powers over prohibition and commercial regulation”.

In other words, cannabis would be removed from the federal schedule of controlled substances, federal cannabis-related crimes would be expunged from offenders’ records, and each state would be able to regulate the plant however its leaders decide. Additionally, supporters of the bill claim there would be no need for the SAFE Banking Act because cannabis businesses would be able to operate legally.

But the chances of such a bill passing seem even more remote than one specifically aimed at hemp-derived CBD. Altogether, CBD-Intel considers a major change that would lead to a clear path to market for ingestible CBD products in the US remains exceedingly unlikely this year.

Helaine Krysik CBD-Intel contributing writer

 Photo: Ted Eytan

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