While FDA sits on its hands regarding CBD, states are not. At least three have legislatively taken the bull by the horns and expressly legalized the production and sale of CBD. It’s the Tenth Amendment (10A) solution to this crisis FDA created.
Existing law such as the Federal Food, Drug, and Cosmetic Act (FFDCA) requires a food additive (any food ingredient) be Generally Recognized As Safe (GRAS) or a New Dietary Ingredient (NDI). While hempseed, hempseed oil, and hemp protein powder are GRAS, CBD and hemp flowers are not yet.
But to legalize foods containing CBD and/or hemp flowers at the state level, a bill could state that “a dietary supplement, food, beverage, cosmetic, or pet food is not adulterated by the inclusion of industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp if those substances meet specified requirements, and would prohibit restrictions on the sale of dietary supplements, food, beverages, cosmetics, or pet food that include industrial hemp or cannabinoids, extracts, or derivatives from industrial hemp based solely on the inclusion of those substances.”
That’s how Colorado, Virginia, and New York did it, declaring CBD as a food ingredient, thus allowing it to be legally sold as a food or dietary supplement in that state. The Tenth Amendment allows all powers not reserved for the federal by the Constitution to be the sole purview of the states. Regulation of Cannabis is not in the Constitution, especially since hemp was already being grown by most of its signatories.
It’s the same reason there are 47 states with some of form of Cannabis reform contrary to the Controlled Substances Act, comprising over 98% of the U.S. population. The 10A is why there are legal marijuana states. One, Louisiana, is even in the business of growing and distributing Cannabis itself!
The answer at the federal level is either get CBD and hemp flowers on the pending list of pre-DSHEA ingredients, or register them as a NDI.