Ben & Jerry’s made a bold new flavor announcement in May 2019: CBD ice cream was coming ... “as soon as it’s legalized at the federal level.”

Two years later, the “groovy” treat still isn’t available to the public, as snack makers continue to wait for a green light from U.S. officials for cannabis-infused foods. But as demand for edibles continues to rise and the market tops the billion-dollar mark, Big Food is getting ready.

With COVID in the U.S. winding down (fingers crossed), the Consumer Brands Association is bringing lobbying efforts for federal cannabis legislation back to its “front burner,” said Stacy Papadopoulos, the trade group’s general counsel. While small brands are forging ahead, big companies are seeking more clarity and remain hesitant due to the patchwork of state regulations and uncertainty about what types of products could be allowed, she said.

“Most of our large recognizable brands are sitting on the sidelines,” she said. “They don’t want to subject themselves to lawsuits or, even worse, that something they were doing in the space was not entirely safe for consumers.”

As a result, plenty of money is being left on the table. Even without the marketing might of big-name consumer companies, the edibles market in the U.S. grew 20 per cent last year to US$1.1 billion according to Surfside, a data analytics company specializing in cannabis.

That has left an opening for smaller brands, which are more willing to take on the risk that comes with products that aren’t federally approved, even if some state laws allow them. Some of the companies, which make gummies, baked goods, chocolates and other edibles, are positioning themselves as acquisition targets when federal regulation comes, said Michael Blanche, co-founder of Surfside.

Big companies will flood the market “the second you can do trade across state borders,” he said. For the small players that aren’t acquired, the competition will ramp up. “Over time, there is a huge threat there.”

If existing brands are edged out, that could disproportionately impact small-business owners as well as people of color, said David Weiner, co-founder of Gossamer, a cannabis lifestyle and media company. The cannabis space is already challenging for minorities, with less than 4 per cent of companies having Black owners and under 2 per cent with Latinx owners, according to data from Cannaclusive and Almostconsulting, which maintain the InclusiveBase, a list of businesses owned by people of color.

“Our fear around federal legalization is who’s being left behind,” Weiner said. “These people who never had skin in the game can come late and make a lot of money, leaving people who got us here holding the bag.”

Some companies are taking it in stride. The peculiarities of the cannabis market may give an advantage to those who have experience, regardless of size, said Jason Navarrete, chief executive officer and founder of Pure Craft CBD, a San Diego-based gummies maker.

Big companies “don’t understand the philosophy of this industry,” he said, adding that he doesn’t feel threatened. “They just look at bottom line.”