Cosmetics and Cannabis

Home | Canna Law Blog | Cosmetics and Cannabis Cosmetics are something of a bright spot when it comes to federal cannabis regulation. Unfortunately, however, there is quite a bit of misunderstanding when it comes to the federal legal framework for cannabis cosmetics. Following up on question that was asked during a recent webinar, here are the basics of which cannabis brands should be aware. First, the distinction between hemp and marijuana applies to cosmetics. If a cosmetic's THC content exceeds 0.3%, it is considered marijuana and is a controlled substance under federal law. Second, provided its THC level does not exceed 0.3%, there is no prohibition on the use of cannabis as a cosmetics ingredient. According to FDA, "certain cosmetic ingredients are prohibited or restricted by regulation, but currently that is not the case for any cannabis or cannabis-derived ingredients." This available legal space sets cosmetics apart from other products, such as foods. Under the drug exclusion rule, foods to which CBD or THC has been added cannot be legally sold or marketed in the United States (even if the THC does not exceed the 0.3% threshold). Third, while the presence of cannabis as an ingredient does not by itself render a cosmetic unlawful, brands must comply with other regulations. For one, even though cannabis is not a prohibited ingredient, brands must ensure that their products do not contain any of the ingredients that are prohibited. In addition: "no ingredient – including a cannabis or cannabis-derived ingredient – can be used in a cosmetic if it causes the product to be adulterated or misbranded in any way. A cosmetic generally is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling, or under such conditions of use as are customary or usual." Finally, depending on its intended use, a cosmetic can also be considered a drug, as defined in the Federal Food, Drug, and Cosmetic Act. Drugs are intended to "affect the structure or function of the body, or to diagnose, cure, mitigate, treat or prevent disease." Depending on a cosmetic's nature, the line between being considered a drug or not is a fine one. It is however a line of great legal import. A CBD cosmetic may be lawful under federal law, provided it meets all of the legal requirements for cosmetics. On the other hand, a CBD drug is certainly unlawful. Check Out Our Cannabis Law Services Share Twitter Facebook LinkedIn E-mail Comment Fred Rocafort Fred leads Harris Sliwoski’s intellectual property practice and is the coordinator of the firm’s international team. Much of Fred’s practice consists of helping cannabis businesses protect their brands. He also works with entrepreneurs and companies entering the Web3 space, a new frontier for IP law. Prior to joining Harris Sliwoski, Fred worked overseas for more than a decade, in both government and private sector roles. Fred is a regular contributor to the award-winning China Law Blog and Canna Law Blog. Fred began his career overseas as a U.S. consular officer in Guangzhou, China, where he advocated for fairer treatment of American companies and citizens in China and for stronger intellectual property rights enforcement. After entering the private sector, Fred worked at a Shanghai law firm as a foreign legal advisor and later joined one of the oldest American law firms in China, helping foreign companies navigate the Chinese legal environment. He also led the legal team at a Hong Kong-based brand protection consultancy, spending most of his time out in the field, protecting clients against counterfeiters and fraudsters in Greater China, Southeast Asia and Latin America. In addition to his IP work, as a native Spanish speaker, Fred works closely with different Harris Sliwoski teams on Latin America and Spain matters. Fred also provides advice to cannabis industry participants and other businesses on import and export transactions. Fred is an ardent supporter of FC Barcelona—and would be even in the absence of Catalan forebears who immigrated to Puerto Rico in the mid-1800s. 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