The last few years have been a wild ride for the United States’ hemp-derived cannabidiol (CBD) industry. Ever since the Food and Drug Administration (FDA) took the position that CBD is unlawful in many consumer products, the industry has faced many questions about what it can and cannot do. To add fuel to this fire, many states have adopted laws and regulations that are different from, more complicated than, and/or inconsistent with the FDA’s position. To say the least, things are complex.

Life is particularly challenging for smokable CBD products. The FDA’s initial positions on CBD failed to address smokable products, and as we noted a few years ago and again last year, it didn’t appear that the FDA would expressly try to regulate smokable products.

Many states nevertheless decided to ban smokable hemp and even smokable products like CBD vapes. For example, last year, Iowa made the sale of smokable hemp products a serious offense. As another example, a ban on smokable hemp was upheld by a federal appellate court for the state of Indiana last year.

On top of that, during the vape crisis over the last few years, many states and municipalities began proposing and even passing laws that restrict flavored vape products. While many of these efforts were limited to nicotine-bearing products, not all were, further restricting how CBD vapes could be sold in some cases.

Recently, there have been a few developments that place the smokable hemp industry in even more jeopardy. First, the FDA issued warning letters to CBD product sellers, including the seller of an inhalable product. While, to be fair, it wasn’t a smokable product, the FDA in 2019 issued a warning letter for the seller of CBD vapes. So even though the agency hasn’t taken the most clear position on smokable CBD in its policy documents, it has taken action against sellers of inhalable products and it appears that will continue.

Additionally, the recent federal appropriations act executed shortly before the new year includes provisions that severely restrict how CBD vape products or even components of those products can be mailed. For a nice summary of those changes, see this article. For companies that fail to comply with these new changes, there can be serious repercussions and liabilities. This is a major change for CBD vape companies.

Given the trends over the past few years regarding enforcement and regulation of smokable CBD products, we fully expect the trend to continue in the coming years. More states will without a doubt continue to implement bans or restrictions, and it’s virtually guaranteed that the federal government will create more roadblocks. For updates, please stay tuned to the Canna Law Blog.