CBD (cannabidiol) continues to make news. To celebrate 4/20, fast food giant Carl’s Jr. sold the “Rocky Mountain High: CheeseBurger Delight” containing a CBD-infused “Santa Fe Sauce.” Carl’s Jr. sold the Rocky Mountain High for $4.20 at a single Denver location and only on 4/20, but has left the door open to a more permanent CBD-infused menu option.

Earlier this month, Protein Bar announced that it would add CBD oil to any drink for $2.99. In offering CBD, Protein Bar stated that “CBD is widely regarded to possess incredibly health potential.” Protein Bar also identified five “benefits of CBD oil”: (1) relieves pain; (2) lowers inflammation; (3) reduces anxiety; (4) relieves nausea; and (5) improves sleep.

Carl’s Jr. and Protein Bar are engaging in obvious marketing strategies (and good ones) to take advantage of CBD being in the news, but there are several interesting legal angles. As we have written about here, the 2018 Farm Bill legalized hemp and the CBD that can be extracted from hemp. Nevertheless, the FDA announced that it continues to be illegal to “introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.” That has not stopped some major retailers from offering CBD topical creams, patches, and sprays. This is different, however; Carl’s Jr. and Protein Bar are some of the first major companies to offer CBD-infused food products.

Carl’s Jr. and Protein Bar are not likely to generate legal action from the FDA because their limited offerings do not appear to be introducing CBD into interstate commerce. That said, the decision to offer CBD-infused food products may have a ripple effect. The FDA is holding a public hearing on May 31, 2019 to discuss regulating hemp-derived CBD, and as CBD continues to go mainstream, there is going to be increased pressure on the FDA to authorize CBD-infused products, including food products. We will be attending those hearings and will provide further updates when they conclude.