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Adding Cannabidiol (CBD) to Food Products in Wisconsin: What You Need to Know

Cannabidiol (CBD) is the new “it girl” in Wisconsin with an assortment of CBD products offered across the state – from tinctures to beer.  As CBD products continue to gain in popularity, it’s important that businesses understand basic state and federal rules.

In Wisconsin, if a business intends to add hemp or hemp extracts to a food product, it will need a license from the Department of Agriculture, Trade and Consumer Protection (DATCP). Food manufacturers must obtain a Wisconsin food processor license; food product re-sellers must obtain a retail license.

In addition to applicable licenses, hemp utilized in the production of food must have obtained a “fit for commerce certificate” either from the state of Wisconsin or from a state with a hemp pilot program.

The Federal Drug Administration (FDA) has clarified that hulled hemp seeds, hemp seed protein, and hemp seed oil do not require additional approval for use in food products so long as marketers do not make any claims related to treating disease (i.e., diagnosis, cure, treatment, or prevention). However, CBD and tetrahydrocannabidiol (THC) are considered active ingredients in FDA-approved drugs and are therefore subject to clinical investigation.

Moreover, pursuant to Section 301(II) of the FD&C Act, it is a prohibited act to introduce or deliver for introduction, into interstate commerce any food with an active drug ingredient. As such, the FDA has concluded that introducing, or delivering for introduction, any food containing CBD or THC into interstate commerce is prohibited.

Simply put, if a business intends to add CBD to its products, the easiest way for it to remain in compliance with state laws and federal guidelines is to (1) obtain the proper state licenses and (2) utilize hemp grown and transformed into CBD oil here in Wisconsin that has obtained a fit for commerce certification.  Once the CBD and food product are combined, businesses should be mindful to keep sales wholly within the state to avoid triggering any action by the FDA.    

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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