If you’ve been following the hemp scene in Washington state, you know it’s been a bit of a roller coaster. The latest “drop” comes in the form of an August 1 memo from the Washington State Department of Agriculture (“WSDA”) titled Restrictions on the use of hemp CBD as a food ingredient. According to the memo, Washington is following the lead of many other states, most notably California,  in prohibiting the use of hemp-derived CBD (“Hemp-CBD”) in foods and beverages.

Washington is essentially implementing the Food and Drug Administration’s (“FDA”) policy on Hemp-CBD as a food ingredient. Last year, the FDA approved the drug Epidiolex. Epidiolex contains CBD. The Food, Drug and Cosmetics Act (“FDCA”) and FDA regulations generally prohibit an article that is approved or investigated as a drug from being an ingredient in food or dietary supplements, unless that article was marketed as a food or dietary supplement prior to being investigated as a drug. The FDA has concluded that Hemp-CBD was not marketed as a food or dietary supplement before the investigation of Epidiolex and therefore the FDA’s position is that Hemp-CBD cannot be added to food or dietary supplements.

According to the WSDA, Hemp-CBD is not approved as a food ingredient. Note that the WSDA’s memo does not apply to Washington’s regulated marijuana market. Licensed retailers are still free to sell CBD-infused edibles derived from marijuana, so long as those products were manufactured by a licensed processor. Washington processors are allowed to add Hemp-CBD to marijuana products so consumers, over the age of twenty-one, can still access Hemp-CBD by going to marijuana retailers. Additionally, the WSDA has stated that some parts of the hemp plant, specifically hulled hemp seeds, hemp seed protein powder and hemp seed oil are allowed for use in food. Why? Because the FDA has determined that these components are Generally Recognized as Safe (“GRAS”) for use in food. Notwithstanding these marijuana-food products containing CBD and food items containing these GRAS components, the WSDA is prohibiting all hemp in food:

Other parts of the hemp plant, including CBD, cannot be used as a food ingredient under a Washington State Food Processor License. Foods containing unapproved parts of the hemp plant may not be distributed in Washington State under a Washington State Food Storage Warehouse License.

This development from the WSDA was somewhat unexpected in light of Senate Bill 5276, which went into effect in April and overhauled Washington’s hemp program in light of the 2018 Farm Bill.  Section 4 of SB 5276 provides:

“[t]he whole hemp plant may be used as food. The [WSDA] shall regulate the processing of hemp for food products, that are allowable under federal law, [and] may adopt rules as necessary to properly regulate the processing of hemp for food products including, but not limited to, establishing standards for creating hemp extracts used for food.”

In addition, SB 5276 Section 14 struck RCW 15.120.020’s language which previously prohibited processing hemp, except for hemp seeds, into any consumable good.  This is not to say that the WSDA doesn’t have authority to follow the FDA’s position on hemp, it just seemed as if the legislature had set the WSDA up to allow for Hemp-CBD in a whole host of products, including food.

In terms of enforcement, it does appear that the WSDA is going to ramp out any aggressive efforts against Hemp-CBD right away:

Recognizing that these recent changes in law may have caused some confusion in the manufactured-food industry, WSDA has been reaching out to the industry so they can take appropriate actions, such as removing CBD ingredients from their products or discontinuing distribution of CBD-containing food products in the state. WSDA is committed to working with our food industry partners during this transition.

Steve Fuller, director of the WSDA’s Food Safety and Consumer Services division told Ben Adlin of Leafly that he prefers to focus enforcement efforts on “outreach and education,” optimistically stating that “[a]s processors and distributors learn that this is not legal either federally or within the state, most of them will do the right thing and figure out a way to come into compliance around that.”
If the outreach and education method doesn’t work, we expect to see WSDA partnering with cities and counties to seize Hemp-CBD food products and potentially even shut down non-compliant businesses. It’s worth noting that King County’s Food Protection Program weighed in on Hemp-CBD in food on August 30:

Recently there has been interest from food establishment operators in selling food and beverage products with industrial hemp and its derivatives such as cannabidiol, more commonly known as CBD. Federal and State laws do not permit the manufacture and retail sales of CBD as a food ingredient in foods and beverages for sale in retail food establishments.

Therefore, in King County, the addition of CBD to food and beverages is prohibited until further guidance and approval by the U.S. Food and Drug Administration, Washington State Department of Agriculture, and Washington Department of Health.

This means that operators may not add CBD to food or beverages, nor may they obtain products containing CBD for resale in any retail food establishment in King County, including restaurants, coffee shops, cafeterias, grocery stores, or at temporary food events and farmers markets.

So what is the big takeaway here? If you are operating in Washington State, steer clear of Hemp-CBD in foods for now. If the FDA changes its tune, the WSDA will likely follow suit but until then, selling Hemp-CBD food in the Evergreen State is risky.

Finally, if you want some additional information on Hemp-CBD in Washington, check out the September 3 episode of KUOW’s The Record where I spoke to host Bill Radke about whether CBD bars are legal in Washington State.

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