There are both positive and negative developments regarding the likelihood of widespread legal sales of CBD oil products.  Last week, a major retailer announced that it will begin selling cannabidiol (CBD) creams and salves in eight states. As a reminder, federal law now permits hemp production under the 2018 Farm Bill if the product contains less than 0.3 percent THC, and the same legislation legalized CBD derived from that hemp. The substance is still subject to a hodgepodge of regulation at the state level, however.

However, the signals regarding imminent widespread brick and mortar sales of CBD oil products are mixed at best. At the federal level, the Food and Drug Administration (FDA) prohibits adding CBD to foods or marketing it as a dietary supplement. This limitation to over-the-counter products is one of the biggest roadblocks facing the CBD industry, and it may be a difficult one to remove. One solution to this could be new regulations from the FDA on CBD, which outgoing FDA Commissioner Scott Gottlieb suggested in his testimony before Congress in February. However, more recently, in an interview at the Brooking Institution, Gottlieb stated that it could take years for the FDA to implement regulations and that a quicker solution may instead be a new law addressing CBD. Relying on action from Congress is always risky, but that might be what it takes for CBD to legally enter the market as an ingredient in a food or supplement. (Of course foods containing CBD, while illegal, are not hard to find. Our favorite is CBD seltzer water.)

At the state level, while some states are easing restrictions other states and local communities continue to take action or threaten brick and mortar retailers of CBD oil products.  For example, in Ohio, CBD sales are prohibited outside of licensed dispensaries, and the Ohio Department of Agriculture is organizing an “embargo” of CBD products through local authorities. In other jurisdictions, such as Maine and New York City, health inspectors are focusing specifically on edible products containing CBD and removing them from shelves. We’ll keep you updated of further developments on this blog, as federal and state governments continue to figure out how they’ll approach the legalization of CBD.