The 2018 Agriculture Improvement Act, commonly referred to as the 2018 Farm Bill, legalized hemp, defined as cannabis (Cannabis sativa L.) and derivatives of cannabis with less than 0.3 percent tetrahydrocannabinol (THC), by removing it from the Schedule I list of controlled substances. Cannabidiol (CBD) and delta-9-tetrahydrocannabinol are well-known cannabinoids that occur naturally in cannabis, but unlike THC, CBD is non-psychoactive (that is, it does not make users high). Hemp’s new status as a legal agricultural product has resulted in an explosion of hemp-derived CBD consumer products such as oil tinctures, gummies, topically applied products, capsules, dog treats, and more. However, according to the U.S. Food and Drug Administration (FDA), it is currently illegal to market CBD by adding it to a food or by labeling it as a dietary supplement, because the FDA has approved one CBD product, the prescription drug Epidiolex, to treat two severe forms of epilepsy.
While CBD products may not currently be marketed as a food or as a dietary supplement, a vast and growing number of hemp-derived CBD products continue to gain popularity. CBD products are widely available on store shelves and online. Unfortunately, our scientific understanding of their benefits and possible adverse health effects—which will almost certainly play a role in potential product liability claims—has not kept pace with the production and use of these products. To compound this problem, state and federal regulators have yet to enact consistent guidance on how CBD products may be manufactured, how CBD products are marketed, or what, if any, warnings are necessary to provide to consumers.