Bradley Partner Whitt Steineker Quoted in Law360 on the FDA's Hesitation toward CBD Foods

Bradley attorney Whitt Steineker was quoted in Law360 on the U.S. Food and Drug Administration’s (FDA) hesitation to allow cannabidiol (CBD) in foods. CBD, which proponents claim can be useful for stress and anxiety or as a topical pain treatment, has been popping up in a wide range of products since it was made legal with the passing of the Farm Bill late last year. However, the FDA stated that it’s still illegal to put foods with added CBD on store shelves. 

While there may be political and public pressure to allow CBD in foods, the FDA is one place where that sort of political momentum doesn't necessarily carry over, Steineker said.

"I do think FDA probably takes pretty seriously that its mission is not to be a reflection of the popular will, its mission is to do what it thinks is necessary to safeguard the food and beverage system," he said.

The CBD industry hasn't developed enough to the point where there are the decades of robust science the FDA would want to see in making a decision, Steineker explained, although there may be anecdotal evidence to suggest that CBD doesn't pose a danger to the food or beverage supply.

"I think it's possible that there's going to be a sense of inertia, and I'm very curious to how eager the agency is to say, 'We haven't allowed this in the last 50 years into food and drinks and now we're just going to do it,'" Steineker said.

The FDA could continue to move in that direction and make determinations that hemp-derived substances are generally recognized as safe, he suggested.

"That addresses a concern that we just open it up and we realize there is some sort of risk that we weren't aware of, and it's harder to put the genie back in the bottle," explained Steineker.

Similar to the marijuana industry and the hemp industry before the passage of the farm bill, companies that are selling CBD foods are trying to read the tea leaves and have made their own decisions about their risk tolerance, Steineker said.

"I suspect that they've made a determination that the likelihood of enforcement and the subsequent punishment is outweighed by their potential upside monetarily, and so they're just hoping they don't get caught," Steineker added.

The complete article, “Will the FDA Bite on CBD Foods?” first appeared in Law360 on March 1, 2019.