Maine Orders Removal of CBD Edibles From Stores, Citing Vague FDA Law

This weekend, more than one business in Maine received a letter from the state’s Department of Health and Human Services demanding the removal of all CBD edible products from the shelves. According to Portland’s Press Herald, the status of CBD products in Maine, from capsules to gummies, is now being called into question. CBD users elsewhere in the country are watching to see whether their state will be next.

In a market where it’s easy to get CBD lattes, seltzers and gummies, our taste for CBD products is moving faster than the actual laws that govern them. CBD, short for cannabidiol, a non-psychoactive component of marijuana, can be derived from hemp, which is not currently scheduled under the Controlled Substances Act and is generally widely available across the United States.

Nevertheless, as the Press Herald reported, Maine’s public health authority is requiring removal of CBD edible products from store shelves “because the hemp-derived product is not a federally approved food additive.” Now, the only way to actually consume a CBD product in Maine is if you do so under the state’s allowance for medical marijuana products and can produce proof attesting to that fact.

As of this article’s publication, the Maine Department of Health and Human Services hasn’t responded to request for comment and has not released a statement. However, judging by the Press Herald’s report, it appears that Maine’s government at least partially based its decision on CBD’s federal status.

There are only a few landmark bills that are important for the CBD market (at least right now.) The most recent of these is the 2018 Agriculture Improvement Act also (also called the Farm Bill), which clarifies some important definitions when it comes to weed-related products.

Where Does CBD Stand in Federal Law?

There is plenty of anecdotal evidence that CBD has calming effects and strong potential as an anti-psychotic. Crucially, it isn’t psychoactive, so it can’t actually get people high. Though CBD is present in marijuana, it is also present in the related hemp plant, which has significantly less THC — less than the 0.3 percent allowed by federal guidelines.

Because of its relatively innocuous profile, the passage of the Farm Bill in 2018 opened the door for hemp products to be commercially transported across state lines. It was good news for anyone looking to sell a CBD product derived from hemp, like a hemp oil.

The problem, which vendors in Maine have just encountered, is that the Farm Bill still preserves the Food and Drug Administration’s authority over CBD products, which FDA commissioner Scott Gottlieb emphasized in a statement in December 2018. That statement notes that, because the FDA has conducted clinical trials on CBD’s therapeutic effects and has approved a CBD-based epilepsy drug, Epidiolex, the agency views CBD as a drug, at least for now.

The statement also notes that previous research on CBD’s use as a potential therapeutic makes it “illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements.” In line with that, the FDA has issued warning letters to companies selling CBD products.

However, it doesn’t seem to be targeting food vendors, having issued only four warning letters in 2017 and 22 in 2016, according to the FDA’s website. The degree to which the FDA is willing to enforce its current policy on CBD-infused food, in other words, is unclear.

Gottlieb’s statement seems to suggest that CBD-related food products won’t be viewed favorably by the FDA. When Inverse asked FDA representatives to clarify whether they intended to act upon Gottlieb’s statements and treat CBD food products as non-federally approved food additives, they said they “don’t have any additional information to share.”

What Does That Mean For Maine?

Nevertheless, it has until now been obvious that CBD products, in Maine and elsewhere, would be available on grocery shelves and even easier to order online. It seems that Maine has decided to take enforcement of the FDA’s policies into its own hands based on its interpretation of the FDA’s existing attitude toward CBD.

Maine’s Department of Health and Human Services is well within its rights to do this. Section 10113 of the Farm Bill allows state governments to come up with their own plans for hemp production and regulation. Documents provided to the Press Herald by Maine’s Assistant Attorney General Deanna White cite the Farm Bill itself as an impetus for the CBD product crackdown. Still, it is a bit perplexing as to why Maine decided to act now, when it appears that the FDA’s attitude toward CBD has not changed since the passing of the Farm Bill.

The news hasn’t been received well by Maine’s hemp industry, and a protest is now planned at 9 A.M. Eastern Tuesday morning at the state house. But at this point it’s hard to say whether this will be an isolated incident — one state deciding to wait it out for more federal action on CBD — or part of a larger national trend.