CBD: launching compliant products in an ever-changing legal landscape

Clare Daley
January 21, 2022
5 min read
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CBD: launching compliant products in an ever-changing legal landscape

Food is a trends-driven industry – and one of the biggest trends in recent years has been infusing products with CBD. From chewing gum to coffee, chocolate to potato chips, the range of goods containing cannabidiol is innovative and diverse.

But while brand interest is growing quickly, any food or beverage containing a new and relatively unexplored ingredient like CBD presents compliance challenges for regulators.

Market demand is moving faster than formal legislation, and both national governments and industry bodies are evolving their guidelines to ensure the safe management of CBD.

Let’s take a closer look at how regulations are changing, and how brands looking to embrace this space can meet compliance requirements to capitalise on the growing CBD opportunity…  

What is CBD – and how is it different from hemp and THC?

To comprehend the compliance challenges in this rapidly evolving market, it’s important to first understand the difference between hemp, CBD and THC.

Hemp is the popular name for Cannabis sativa. It’s the same species of plant as marijuana, however, the term hemp is used to define cannabis plants that contain low levels of THC (less than 0.3% dry weight according to US federal law).

Hemp seeds are rich in essential fatty acids, which has made them (and the oil derived from them) increasingly popular as a natural food ingredient – for example, in Good Hemp’s seed milk. Meanwhile, its moisturising properties have led to many beauty companies incorporating hemp into their products – such as New Zealand’s Hemptuary natural skincare products.

THC (tetrahydrocannabinol) is the psychoactive compound found in cannabis plants. The higher the level of THC, the stronger its mood-altering effects are likely to be. But the trace amounts found in hemp plants aren’t enough to make consumers feel high.    

Like THC, CBD (cannabidiol) is a cannabinoid or natural compound found in the Cannabis sativa plant. The critical difference is that CBD is non-psychoactive, so it doesn’t make users feel high – even though it contains traces of THC.

Why is CBD becoming so popular?

The fact that CBD contains very small traces of THC has led many consumers to believe that it has the same mellowing effects as consuming the drug cannabis.

More than 60% of CBD users take it to relieve anxiety, while it’s becoming an increasingly popular tool for helping consumers manage depression, stress and insomnia. But due to its infancy as a food ingredient, there is currently not enough scientific data for brands to make these health claims officially on their product packaging.

There is, however, one area in which CBD is already generating promising scientific results. The compound has been found to have anti-inflammatory and antioxidant properties, which means it can be useful in treating painful inflammatory conditions such as rheumatoid arthritis.

How is the use of CBD regulated in food and drink?

The perception of CBD as a ‘chill out’ ingredient is leading many food and beverage brands to start using it across their products. From candies and cereal to spirits and sparkling water, there are more CBD products available today than ever before. And how these products are regulated depends on their end market.

In the UK, for example, CBD oil is treated as a novel food ingredient; something new to the market that is being monitored by regulatory agencies, and is only permitted within certain product categories, or in limited quantities, as a result.

Since 2019, food and beverage brands using CBD extracts in the UK have been required to apply for legal authorisation. This helps the Food Standards Agency to monitor how CBD is used. If the compound is found to be safely applicable within the country’s food law framework, it may be added to the official list of authorised but regulated novel foods.

In the USA, meanwhile, hemp-based CBD is legal in most states, but the Federal Food, Drug and Cosmetic (FD&C) Act prevents CBD from being added to food for intra-state trade. So while it can be sold in individual states, product containing CBD oil cannot be sold freely across North America.

To homogenise the use of cannabidiol as an ingredient in the US, a new CBD Product Safety and Standardization Act was proposed in December 2021. Representatives hope this will establish a national legal framework for regulating the use of hemp-derived CBD in food and drink products.

In the wider world, some countries are stricter about the use of CBD (Bolivia and Sweden, for example, prohibit the use of CBD in food), whereas others are more relaxed. So rather than having a single international marketing strategy, CPG brands need to identify local opportunities and adapt product claims from market to market, depending on that region’s level of tolerance.

How is the use of CBD regulated in cosmetics and skincare?  

While some of the regulations governing the use of CBD in food also affect cosmetics and skincare products, it’s worth noting that other rules also apply. For example, CBD can be used legally in beauty products under EU law and marketed as having antioxidant and anti-sebum properties for topical use. However, these products can’t be marketed as having any medicinal effect (something we’ll touch on again in a moment).

Legislation is different in Asia, where China has banned any cosmetics containing CBD, but countries like Thailand are relaxing guidelines to allow products containing hemp seed oil and hemp seed extract – and may review the legal use of CBD in the near future.

What are the challenges with regulating CBD?

One of the reasons that regulation is proceeding with caution and varies internationally is the volatility of CBD’s active compounds during the manufacturing process.

THC becomes psychoactive when heated – so there is a concern that production methods could alter the strength and impact of CBD in food. There’s still work to be done within regulatory bodies like the Food Standards Agency to study and learn more about the behaviour of CBD. In the meantime, brands and their manufacturing partners need to be aware of how the compounds contained in CBD oil may change when combined and consumed.

It’s not just the physical behaviour of the cannabidiol compound that must be carefully regulated, either.

If CBD had medicinal qualities, it would not qualify as a food ingredient and its sale would be more restricted – which is why industry bodies are carefully monitoring CBD food marketing and product claims. While consumers choose a food or beverage containing CBD because they believe it will help them relax, de-stress and relieve their anxiety, brands cannot make any false or misleading claims about the effects of consuming CBD, or state that it has any medical benefits.

The same framework applies to CBD in cosmetics and skincare products; manufacturers cannot claim any medical or health benefits, and it can’t be consumed orally under EU law.

How can food and beverage brands legally produce and market CBD products?

For brands that can navigate the complexities of product legislation, there is a huge consumer appetite for legal cannabis products; there’s a reason it’s sometimes referred to as the ‘green gold rush’.

But there is no single, global approach to this emerging industry, and there might never be – so companies planning their expansion into CBD goods need to look at NPD market by market, optimising their products and messaging to meet local compliance guidelines.

A straightforward way for brands interested in CBD to stay within the confines of the law is to work with a compliance agency that understands cannabis legislation.

CBD regulations are constantly changing and evolving, with several countries looking to relax legislation without compromising public health and safety. It’s a compliance agency’s role to keep pace with the latest legal changes – and help CBD brands say more in regions where they can!

By collaborating with a CBD compliance specialist, food brands can focus on developing exciting flavour profiles and defining their target market, confident that the products they are creating meet market legislation. And they can maintain that relationship beyond product launch, to tap into new CBD product sales opportunities as the legal infrastructure around this new ingredient evolves.

Hooley Brown specialises in helping food and beverage brands develop compliant products and go-to-market strategies. Get in touch for support with innovating your CBD product range and meeting industry legislation.

This blog post was written in January 2022. Facts were correct at the time of writing.

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