Kelley Drye: CBD and Hemp Legal and Regulatory Roundup – February 2021

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Welcome to our weekly roundup of CBD and hemp-related legal and regulatory news:


Published via JD Supra

The Cannabis Conundrum: A Warning For Employers

While many states have legalized medical and recreational marijuana, marijuana remains an illegal controlled substance under federal law. As we have previously discussed, this has created a conundrum of sorts for employers who want to maintain a drug free workplace. In New York State, the landscape for employers has just gotten more challenging.


Bipartisan bill would treat CBD products as dietary supplements

A bipartisan bill that would treat hemp-derived CBD products as dietary supplements will be reintroduced in the House by Reps. Kurt Schrader (D-Ore.) and Morgan Griffith (R-Va.). The legislation was first introduced in September 2020 and was cosponsored by 18 Democrats and 11 Republicans. It was referred to the House Energy and Commerce Committee but was never heard. The bill puts hemp-based CBD products into the dietary supplement category, which already has an existing regulatory framework. The bill would make CBD legal for use within 90 days of enactment. The legislation would allow CBD manufacturers to produce hemp-derived ingestibles based on the FDA’s dietary supplement standards. The hope is that putting CBD into a preexisting regulatory category could speed up the process and encourage larger food and beverage corporations to begin producing and selling CBD products. Politico Pro

CRN commends bipartisan CBD legislation protecting consumer safety

In response to the introduction of the Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2021, introduced by Representatives Kurt Schrader (D-OR) and Morgan Griffith (R-VA), The Council for Responsible Nutrition (CRN) said the legislation will promote a safer and stronger dietary supplement marketplace. The organization also said it will direct the FDA to provide a legal pathway to market for dietary supplements containing hemp-derived cannabidiol (CBD), while still assuring FDA’s stringent requirements for manufacturing, labeling and marketing of other dietary supplements apply to these ingredients. CRN especially appreciates that the legislation includes CBD along with other hemp-derived cannabinoids for potential inclusion in dietary supplements. Council for Responsible Nutrition

Iowa, N.H. moving to regulate CBD products

Iowa and New Hampshire are taking steps to regulate cannabidiol (CBD) products, drawing comment and reaction from industry associations. The New Hampshire House of Representatives proposed House Bill 272, a bill which would:

  • Allow the sale of products containing hemp-derived CBD;
  • Require products containing CBD to be registered annually by the manufacturer; and
  • Create a position in the Department of Health and Human Services to perform inspections related to those registered products.

The Council for Responsible Nutrition (CRN) submitted comments urging the state to model its requirements for hemp-derived CBD after federal law. The Natural Product Association (NPA) noted that N.H. is the latest in a line of states to fill a federal regulatory void. When it comes to Iowa’s Senate File 43, CRN recommended deleting the bill’s proposed ‘New Section 126.4 Hemp products and consumable hemp products – retail sales – claims’ and references thereof.” Whole Food Magazine

European Commission adds natural hemp-derived CBD to cosmetic ingredient database

The European Commission’s (EC) Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG Grow) made two additions to the EU CosIng database: listing cannabidiol naturally derived from Cannabis Sativa L. (hemp) and cannabidiol naturally derived from leaves of Cannabis Sativa L. (hemp) as ingredients for use in cosmetic and personal care products. The first listing cannabidiol – derived from extract or tincture or resin of cannabis cited ingredient functions as: anti-sebum, antioxidant, skin conditioning and skin protecting. The second listing cannabis sativa leaf extract cited skin conditioning and skin conditioning emollient as its functions. Cosmetics Design Europe

CBD product maker can’t escape suit over broken deal

A lawsuit against manufacturer CBD Universe will go forward after a New York federal judge said there’s enough evidence to support allegations the company knew it was part of a plan to breach a competitor’s contract. U.S. District Judge J. Paul Oetken rejected CBD Universe’s motion to dismiss the lawsuit filed by manufacturer SLS Brands after finding the suit does enough to allege CBD Universe knew about SLS’ contract when it signed an identical agreement with SLS’ business partners. Law 360 (sub. req.)


Contact Kelly Drye:

Kristi L. Wolff
Cannabis Practice Chair
(202) 342-8805


Kelley Drye has extensive experience navigating the rapidly-changing cannabis industry. We represent a multitude of stakeholders in the hemp and CBD ecosystem, from growers and processors to manufacturers, retailers, and investors.  We also counsel financial institutions and service providers regarding compliance with the laws and regulations applicable to the cannabis industry in general.
Hemp and CBD are some of the fastest-growing industries in America — and offer huge business potential and unique challenges for distributors, processors, and investors, as well as companies seeking to capitalize on their emergence.  Kelley Drye’s interdisciplinary team helps companies navigate the full range of hemp and CBD-related legal and regulatory challenges, including: state licensing compliance, food and drug regulations, advertising compliance, intellectual property procurement, corporate formation, real estate issues, tax consequences, banking concerns, employment issues, litigation, trade secret protection, internal investigations, criminal defense, and other issues.  We leverage our nationwide footprint to provide holistic advice and representation to those directly involved in or looking to enter the industry.

Our recent experience includes:

    • FDA and Advertising Regulatory Advice:  Assisting multiple companies in navigating complex federal-state issues relative to product labeling and advertising, particularly with regard to CBD products.
    • Intellectual Property:  Actively prosecuting patents directly or peripherally related to cannabis in a variety of technical disciplines.
    • Banking, Securities, and AML: Counseling clients regarding payment transactions, anti-money laundering, and securities issues.
    • State Regulatory: Assisting clients in preparing and filing applications for grower and processor licensing in multiple states.
  • Labor and Employment: Counseling employers throughout the country on cannabis issues in the employment context.

Top 200 Cannabis Lawyers

We Support

Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild