Why We Should Care About CBD Regulation (Or the Lack Thereof)

It’s a bit of a hard sell in these days of non-stop global and domestic upheaval to ask people to care about CBD regulation. But if you can peel your eyes away from the crisis in Ukraine for a moment, there’s good reason to pay attention to the hemp industry’s plight – and the FDA’s hesitancy to act.

There is a huge amount of confusion around the legal and regulatory status of hemp-derived CBD in the US and for good reason. At this point, CBD’s legal status and its regulatory status are almost entirely distinct. That is to say, hemp-derived CBD is completely legal and, at the same time, completely unregulated.

This situation is confusing for consumers for a couple of reasons.

First, there is a widespread perception that when CBD became legalized in 2018, it automatically came under the umbrella of some kind of regulatory agency.

In 2019, the Consumer Brands Association conducted a survey that showed that 77 percent of Americans assume that CBD is regulated, while 15 percent said they did not know. Of those surveyed, only eight percent understood that it was not regulated.

(Of those who assumed that CBD is regulated, the guesses as to who was regulating it ranged from, to name a few, the FDA to the Drug Enforcement Administration to the Centers for Disease Control and Prevention.)

And this matters to Americans! Of those who learned that, in fact, CBD is not regulated, 84 percent of consumers expressed at least moderate concern, 67 percent of whom said they were “extremely” or “very concerned.”

Secondly, the situation becomes even more befuddled when you add consumer confusion about hemp-derived CBD (federally legal but entirely unregulated) versus marijuana-derived CBD (only legal in some states but highly regulated and undergoing mandatory testing).

So why does this matter?

Mislabeling

The widespread mislabeling of CBD products has been well documented. Multiple studies have found that CBD products are regularly (and sometimes wildly) over-dosed or under-dosed.

An FDA study in 2020 found that, “of the 102 products that indicated a specific amount of CBD, 18 products (18%) contained less than 80% of the amount of CBD indicated, 46 products (45%) contained CBD within 20 percent of the amount indicated, and 38 products (37%) contained more than 120 percent of the amount of CBD indicated.”

The most recent study, published in January found that  “CBD formulations continue to be mislabeled. In some cases, products labeled as having CBD contained virtually no active ingredient. This was particularly true for the aqueous (beverage) products.”

What’s in your CBD bevies? Who knows?

Confusion over hemp-derived THC

The lack of regulation has also created the rather odd situation we have found ourselves in at present, in which CBD companies are now selling Delta-9 THC products. Because the THC is derived from hemp and falls under the dry-weight limit of 0.03%, it is arguably federally legal.

Whether you find this situation alarming or not, it’s worth noting that these THC products, which are sold at much lower prices than the legal cannabis industry can compete with, are also entirely unregulated and subjected to no mandatory testing at all. Responsible companies will continue to test – for accurate dosing and contaminants – but they are under no legal obligation to do so.

The whole hemp-derived THC debate is worth an article of its own, but we know that the current patchwork regulatory situation is massively confusing to the public and undercuts the highly regulated legal cannabis industry.

But who can blame a CBD business for profiting from a loophole? The responsibility for regulating CBD has to lie with a larger governmental body.

Continuing upheaval for hemp-dependent businesses

This is probably the part where most consumers’ eyes start to glaze over, but the regulatory uncertainty continues to hamper the wellbeing of the hemp/CBD industry.

According to the Hemp Roundtable, “regulatory uncertainty regarding the legality of hemp-derived CBD has started to dismantle the up-and-coming market, limiting demand from the manufacturing sector, and resulting in a sharp decline in hemp prices and economic hardship for hemp farmers.”

Congress is currently considering a bipartisan bill (H.R. 841) which would force the FDA to regulate CBD. The bill, which has broad support from the hemp industry, would “apply the same regulatory framework for existing dietary supplements or food and beverage additives (think caffeine) to hemp-derived CBD products and ingredients, ensuring consumer safety by holding manufacturers to production standards while clarifying the legality and legitimacy.”

If the bill passes, the CBD industry may finally be able to put the days of the “wild west” behind it. And aren’t we bored of that metaphor anyway?