Legal Counsel for Budding CBD Businesses
The Food Law Firm’s cannabidiol (CBD) experience will keep your CBD & hemp products in compliance through custom-tailored legal services. This landscape is ever-evolving, so it’s high time you’ve had CBD legal experts on your side.
Why You Need a CBD Business Lawyer
The industrial hemp industry is gaining legitimacy, but its progress is haphazard. FDA regulation, trademark law, and even Alcohol and Tobacco Tax and Trade regulations have wildly uneven views on CBD as a product ingredient. If you want to get a CBD product to market, you have to be good at balancing regulations from different agencies that are incompatible with one another. The Food Law Firm has provided comprehensive, nuanced guidance on:
- The marketing and labeling of products containing CBD.
- Production contracts with agricultural producers for raw CBD materials.
- The co-pack manufacturing of consumables containing CBD.
- Trademarking strategies for CBD products.
Marketing and Labeling
Right now, in a very narrow range of circumstances, it is possible to sell a product containing CBD. Although CBD is not Generally Regarded as Safe (GRAS), FDA is turning a blind eye to its use as an ingredient in some products. There are important caveats to this exemption. If you want to stay off the radar, avoid any marketing language making any product claims at all about the product. This includes no structure-function claims, no health claims, and especially no disease claims. Another excellent idea for a CBD Marketer is to avoid any implication at all that the product is a “dietary supplement”.
Production Contracts
CBD Marketers still have the ability to buy directly from the farm source. Unlike most of the traditional food manufacturing industry, direct-source purchasing is still a popular method of supply. It is also not uncommon for Marketers to purchase a crop ahead of planting. These are always fun contracts for us to draft because we get to enrich farmers for their products.
CBD Co-packing
In addition to the same issues we discuss on our Co-packer Services page, CBD Marketers need to be additionally concerned with one risk that is particular to them – waste. CBD is a high value ingredient. Though there is always some waste in the manufacturing process, wasting too much CBD during a co-pack relationship can utterly destroy the projected margin for the product. In a CBD copacker relationship, the parties need to determine who exactly bears the risk of waste.
Trademarking
Every consumer product needs to be trademarked, but it is currently extremely difficult to obtain a trademark for a food or supplement product that contains CBD. The United States Patent and Trademark Office has its own regulations for granting registrations to proposed marks. One of the prerequisites is that registered marks can only be used on goods in “lawful” commerce. Because CBD is not yet Generally Regarded as Safe, the Trademark Office uses this to deny registration for any product containing CBD. We’ve got a few tricks up our sleeve, but acquiring trademark protection for a CBD brand is a tricky thing.
Bottom line – if you have a CDB product, your regulatory and commercial risks need to be comprehensively managed. This is one of the few “unsettled” areas of law in our practice, where major changes in the law are underway that can swing the industry dramatically one way or another.
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