Keith Nunes 2019

KANSAS CITY There is consensus throughout food and beverage that the markets for cannabidiol (CBD) and tetrahydrocannabinol (THC) offer significant promise if they are approved for use as ingredients in applications by the Food and Drug Administration. Until then, many consumers must contend with individual state laws and regulatory programs that may be putting consumers and brands owned by consumer packaged goods companies at risk.

The number of companies selling CBD- and THC-containing products where they are legal is growing, and neither state regulators nor the FDA currently have the resources needed to fully regulate the category. That’s not to say efforts are not underway.

On May 4, the FDA sent warning letters to five companies selling products containing CBD and THC. All the letters said the companies’ products were unapproved new drugs sold in violation of the Federal Food, Drug, and Cosmetic Act.

The products ranged from chocolate, honey and coffee to gummies, tinctures, capsules, salves, lotions and hand sanitizers. Even several pet products, including CBD pet oil tincture and CBD pet treats, were found in violation of the Federal Food, Drug, and Cosmetic Act as well.

“The FDA is very concerned about the growing popularity of delta-8 THC products being sold online and in stores nationwide,” said Janet Woodcock, MD, principal deputy commissioner for the FDA. “These products often include claims that they treat or alleviate the side effects related to a wide variety of diseases or medical disorders, such as cancer, multiple sclerosis, chronic pain, nausea and anxiety.”

Adding to concern, Dr. Woodcock said, is how some CBD- and THC-containing products are being packaged in ways that may appeal to children.

“We will continue to safeguard Americans’ health and safety by monitoring the marketplace and taking action when companies illegally sell products that pose a risk to public health,” she said.

The marketing of such products using packaging appealing to children is an issue that has drawn the attention of the Consumer Brands Association and member companies like Kellogg Co.; Mondelez International, Inc.; PepsiCo, Inc.; and Post Holdings, Inc. The FDA reported 2,362 THC exposure cases from Jan. 1, 2021, through Feb. 28, 2022. Of those, 41% of exposures involved pediatric patients, and 82% of unintentional exposures affected children.

Leading to the exposure are the use of packaging and logos similar to well-known brands like Cheetos, Oreo, Trix and others, according to the CBA. The food and beverage brand owners are asking that language be added to legislation currently moving through the House and Senate that would stop the use of logos/packaging popular with children.

State laws that have allowed for the development and proliferation of CBD- and THC-containing products have created a patchwork of regulations that vary widely. While it is clear having such regulations is positive, some manufacturers are taking advantage of the state-by-state confusion to manufacture copycat products that may be marketed using unsubstantiated claims. Congress has tried to pass bipartisan legislation to nationalize the regulation of such products. With that legislation stalled, it is imperative for Congress to do what is necessary to protect consumers, particularly children.