In the United States, the regulation of ingestible hemp products — including hemp-derived beverages — is complex and evolving. A compliance manager should understand the current legal contours, enforcement trends, and risks associated with marketing hemp drinks containing cannabinoids.
Legal Foundation: The Farm Bill and FDA Authority
The 2018 Agriculture Improvement Act (“2018 Farm Bill”) federally legalized industrial hemp (i.e. cannabis with less than 0.3 percent Δ⁹-THC on a dry weight basis), removing it from the Controlled Substances Act. However, the Farm Bill explicitly preserved FDA’s authority to regulate products containing hemp-derived substances when they are used in foods, beverages, supplements, or cosmetics. Thus, while hemp cultivation is federally permitted under conditions, ingestible hemp derivatives remain subject to FDA regulation under the Federal Food, Drug, and Cosmetic Act (FD&C Act).
Prohibition on CBD in Food and Beverages Under Current FDA Policy
In its public statements and regulatory actions, the FDA currently maintains that it is unlawful to add cannabidiol (CBD) to conventional foods or beverages or to market CBD as a dietary supplement under existing statutes. The agency cites limited safety data, potential risks to liver function, interactions with other drugs, and other uncertainties about long-term use.
FDA has treated food or beverage products infused with CBD as “adulterated” under the FD&C Act because CBD has not been approved as a food additive nor been the subject of a Generally Recognized as Safe (GRAS) determination for use in foods or drinks. In fact, FDA has issued warning letters to manufacturers marketing CBD-infused drinks or foods for distributing unapproved products or making unsubstantiated health claims.
Permissible Hemp-Derived Ingredients (Non-CBD Components)
Not all hemp-derived components are prohibited in foods. In December 2018, FDA evaluated and raised “no questions” regarding several GRAS notices for hemp seed–derived ingredients: hulled hemp seed, hemp seed protein, and hemp seed oil. As long as these ingredients comply with all other food law requirements (e.g. purity, safety, labeling), they may be lawfully used in food or beverage formulations. Outside of those specific seed derivatives, no other hemp-derived cannabinoids or extracts have received approval as food additives or GRAS status for use in foods or beverages.
Emerging Developments, Proposed Pathways & Risk Mitigation
Recognizing the growing consumer demand, the FDA has signaled interest in proposing new regulatory pathways to address hemp-derived cannabinoids in food and supplements. However, it has not yet implemented such a pathway. In January 2023, the agency publicly stated that CBD products cannot be regulated under existing food and dietary supplement authorities. Meanwhile, FDA is developing adverse health reporting systems for hemp-derived cannabinoid products to better monitor safety signals.
From a compliance perspective, producers or retailers of hemp drinks should be cautious. Until a clear regulatory framework is established, any beverage containing CBD or other cannabinoids (beyond permitted seed derivatives) carries a significant legal risk of FDA enforcement (product seizure, warning letters, injunctions) and state-level disruption. Additionally, some states have instituted their own rules allowing or banning CBD beverages, creating a patchwork regulatory landscape.
In summary, while hemp-derived beverages appeal to consumers, their compliance risk remains high under current FDA regulation. The only hemp-derived ingredients readily permissible today are seed-based products already determined by FDA, not cannabinoids such as CBD. Until Congress or FDA establishes a new regulatory path, the status quo treats CBD-infused beverages as unlawful under the FD&C Act.