Moving into year two of FDAs evaluation of the potential regulatory frameworks for CBD, the states have emerged as the key regulators of this popular ingredient. States like California, Georgia and Maryland have remained steadfast in adopting FDAs current position that CBD cannot be added to food or beverages, but in the past year, several states have plowed forward with their own regulatory frameworks for CBD-containing food and beverages.

While it remains unclear whether FDA will ultimately allow the use of CBD as a food ingredient, it is more important than ever that marketers of CBD-containing food and beverages monitor the growing number of states with testing, labeling and registration requirements for these products, especially as some states begin enforcing these requirements.

Colorado appears to have been the first state to regulate CBD and other hemp derivatives as food ingredients. Although not as detailed (or onerous) as other states, Colorado has a policy that "establishes the allowance for and conditions that must be adhered to for IH [industrial hemp] to be utilized in food." This includes basic labeling requirements for hemp food products, sourcing requirements and registration for in-state hemp product manufacturers, extractors, processors and storage facilities.

However, a notable but troubling trend among states is the movement toward comprehensive testing and labeling requirements, along with mandatory registration of products and the distributors and retailers that sell these products. Unfortunately, companies navigating the state rules for hemp food products will find a maze of different requirements, and consequences for noncompliance can be just as uncertain.

Testing requirements

Several states such as Indiana and Utah require hemp products to be tested for contaminants, including pesticides, solvents, heavy metals and microbial contaminants, as well as for THC and CBD concentration. In most cases, the testing must be performed by an independent, third-party ISO-accredited lab with no affiliation to the company distributing the product. And, in some states, the product label must include a QR code wher a certificate of analysis (CoA) with the testing results can be accessed. West Virginia’s new hemp rule also authorizes the state to conduct audits of third-party labs that provide CoAs.