On one of my recent trips to my local pet store, I ended up involved in an unexpected and lengthy conversation with the owner about cannabidiol (CBD) pet treats. We’ve written before about the precarious legal status of CBD, but CBD-infused pet products seem to be flying under the radar.
As an initial matter, is CBD legal under federal law? As we’ve noted in previous posts, the answer depends.
Marijuana is a Schedule I controlled substance under the Controlled Substances Act (CSA), and is federally illegal. Therefore, CBD derived from marijuana violates the CSA. The Drug Enforcement Administration has stated that it believes CBD to be a marijuana derivative and, therefore, a Schedule I drug. However, the CSA does not include in its definition of “marijuana” the “mature stalks” or “sterilized seeds” of the plant. The mature stalks and sterilized seeds constitute hemp products, which are not scheduled under the CSA.
Though the DEA has no enforcement authority with respect to hemp products, it does control hemp cultivation. To cultivate hemp in the U.S., you must have a permit from the DEA; the only exception to this is the 2014 Federal Farm Bill, which allows state departments of agriculture, and universities and colleges to cultivate hemp without a permit from the DEA for educational and research purposes. Because of the prohibition on U.S. hemp cultivation without a DEA permit, the hemp products we purchase in the U.S. typically come from hemp imported from overseas.
Therefore, when we’re talking about CBD products for pets, the only way these products can be legal is if they are derived from imported hemp and not from marijuana. However, the process of extracting CBD from hemp is more involved than from high-resin marijuana plants, and “products with heavily processed ‘pure’ CBD derived from industrial hemp lack the full spectrum of aromatic terpenes and other cannabinoids found in high-resin” plants.
A few different scenarios are possible here. Of course, one is that all of the claims made by the manufacturers of these pet products are true. Another is that the quality of CBD, assuming it is produced from imported stalks and sterilized seeds of hemp, is less than it would be if produced from marijuana plants. And yet another scenario is that the importers of the CBD oil used in these products have not been entirely truthful with customs. Verifying the true origin of CBD oil is difficult for customs officials, particularly given how murky federal law is on the subject. Our international trade lawyers frequently deal with U.S. customs on behalf of our clients, even on clearly legal cannabis products.
Adding another layer of complexity, generally whenever a company makes a medical claim about a product, including a product for pets, that product is classified as a drug. Under the Federal Food, Drug and Cosmetic Act (FDCA) new drugs are not allowed to enter the U.S. market without first being tested by the FDA, unless they meet the definition of a dietary supplement.
However, the FDA does not consider CBD to be a dietary supplement; it considers CBD to be a new drug. And the FDA has issued warning letters to numerous companies making medical claims about their CBD products.
Setting aside the issue of FDA regulation, let’s go back to the issue surrounding the source of CBD oil. What if you happen to live in a state with legal recreational or medical marijuana? Can state-licensed producers and processors make CBD oil for use in pet products? In Washington, marijuana products must be “intended for human use.” And in Colorado, regulations are based on the FDA standards described above. So neither of these states would allow licensed producers or processors to manufacture products for consumption by pets. However, an issue has recently arisen in Oregon, where the regulations are less clear. And Oregon manufacturers have been making edibles for pets that do not appear to be legal, so far without any legal ramifications.
The bottom line here is that regardless of where you live, if you walk into your local pet store (or place an online order) for CBD pet products, there are currently no standards in place to ensure you are getting what you think you have ordered. Even where companies state on the packaging that the products are imported, the legal status of those products is uncertain, as is their true CBD content and medicinal value.