DPH says CBD, THC prohibited in food manufactured or sold in Mass.

Addressing the recent influx of hemp-based products like gummies and beverages that contain active ingredients also found in cannabis products, the Department of Public Health’s Food Protection Program has issued an advisory clarifying that it is illegal to manufacture or sell food products with CBD or THC in Massachusetts.

The advisory, issued on May 31, covers a growing number of intoxicating hemp products, such as products marketed as Delta-9 and Delta-10, but it does not apply to marijuana products regulated by the Massachusetts Cannabis Control Commission.

The DPH is also asking local boards of health to help enforce the federal Food, Drug and Cosmetic Act, which prohibits the addition of hemp-derived CBD (cannabidiol) and THC (delta-9-tetrahydrocannabinol) to food products.

The DPH issued answers to some frequently asked questions about CBD and THC, particularly regarding two related state regulations, 105 CMR 500 and 105 CMR 590.

In 2018, the federal Farm Bill removed hemp (as defined by the Farm Bill) from the federal Controlled Substances Act and deemed it an agricultural commodity that could be lawfully produced in the United States. The Farm Bill, however, did not remove the prohibition, under the Food, Drug and Cosmetic Act, against adding CBD or THC to food or beverages. This prohibition exists regardless of whether the CBD or THC is hemp-derived, according to the DPH, because CBD and TCH are active ingredients in federal Food and Drug Administration-approved drugs.

The DPH regulates food manufacturing in the Commonwealth under state regulations (105 CMR 500) that require all food to be from approved sources that comply with federal, state and local laws and to not contain any prohibited ingredients.

Likewise, Regulations for Minimum Sanitation Standards for Food Establishments (105 CMR 590), enforced by local boards of health in partnership with the state, incorporate the FDA’s Food Code, which requires that food be obtained from sources that comply with federal, state, and local laws and not contain any prohibited ingredients.

Local boards of health also have the authority to restrict and regulate the sale of vaporized hemp-derived products under the 2019 Tobacco Control Law and related state regulations (105 CMR 665). (Questions about local regulatory authority may be directed to MMA Tobacco Control Director Lisa Stevens-Goodnight at lstevensgoodnight@mma.org.)

Further, no cannabis product (hemp-derived or otherwise) may be marketed with claims of therapeutic benefit or any other disease claim without approval from the FDA.