Opinion

Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2020.

By Kelly Scott Unger

Okay, I know, sounds ridiculous.   Perhaps you have thought about whether or not to feed your dog a treat laced with marijuana just before a storm.  Maybe you even think about whether or not your dog would benefit with CBD Oil on their kibble to help with separation anxiety or another type of feed produced with Hemp.  Maybe you already do one of these things in hopes to help support your four-legged pal.  As a consumer, you no doubt see products marketed to people and pets at every turn, but is it really legal or even safe? Pondering these questions for the pets of the world can be challenging when you look at the regulatory side of pet food. 

Pet food often finds itself in a unique regulatory space, under federal regulations and state commercial feed laws.  Food is defined as “articles used for food or drink for man or other animals”.  21. US Code § 321. Just like with human food, pet food is required to be safe and meet labeling requirements under the FDA’s Food, Drug and Cosmetic Act (FFDCA).  Food, Drug and Administration (FDA), Section on Animal Food and Feeds Pet Food, https://www.fda.gov/animal-veterinary/animal-food-feeds/pet-food, last visited May 4, 2020.   FDA is responsible for making sure ingredients are safe to use in pet food and meeting labeling requirements – just like human food.  According to FDA’s website, FDA is responsible for reviewing claims around magnesium, hairball control and around urinary tract function.   low magnesium, hairball Control and maintain urinary tract.  But FDA also points to the American Association of Feed Control Officials, (AAFCO) AAFCO, the American Association of Feed Control Officials in reference to how some states do make their own regulations around labeling in addition to what FDA requires. See Food, Drug and Administration (FDA), Section on Animal Food and Feeds Pet Food, https://www.fda.gov/animal-veterinary/animal-food-feeds/pet-food, last visited May 4, 2020.  

If you aren’t familiar with AAFCO, it is a group of regulatory agencies and their voluntary membership from the state’s feed control officials with the primary goal of creating a uniform language for pet food.  The FDA volunteers as a member of AAFCO, and together they work to create a model law with standards, ingredient definitions, labeling requirements, and enforcement policies around the sale of animal feeds and ingredients.  It has always seemed as though AAFCO came together in the absence of FDA enforcing or clarifying animal and pet food regulations to provide guidelines as pet food and animal food has grown.  They work to make sure regulations in Arkansas do not completely contradict Florida so companies can make the same pet food and label across the US.  While FDA has jurisdiction over animal food, a lot of enforcement and action happen in each state.  

It is quite an interesting landscape if you really delve into the regulatory pieces of AAFCO and FDA.  In my opinion, there are some pros to this model of regulation.  For the pet food industry and its stakeholders (including consumers), AAFCO’s additional guidance provides an attempt at creating consistency.  The consistency is in labels, nutrition and standards but also works to hold the industry and its stakeholders accountable.  The state regulatory agencies under the guidelines of AAFCO also work an enforcement arm of the AAFCO Model Law, and will work to pull products off the shelves in retail stores and check to make sure it matches what is guaranteed on the label, such as the guaranteed analysis.   AAFCO provides an opportunity for stakeholders to participate in changes of the model law and seeks input from scientific sources, when FDA may be silent on a piece of legislation.   

The cons of this model however pose a couple of challenges.  For starters, AAFCO is not law, it is a model and only law if the state feed agencies adopt it as law.  And some states may adopt a portion but omit another portion.   States may also interpret things differently than another state adding an element of confusion.  Each year, AAFCO publishes a book, called the “AAFCO Official Publication” (OP) which you purchase annually for around $110.  This is an expensive way to access the most current law, especially if you are a consumer.  The AAFCO model also was defined in a time when pet food looked very different and there was not an understanding we might become people who have a box delivered to our house every month with treats, food, flea collars and the latest greatest toys. AAFCO states require that all pet food be registered in that state but hasn’t been able to quite get its head around how the online world changes and affects regulations.  Also, it can take years and many committee meetings to get an ingredient defined or pushed through an AAFCO committee or to propose a change to the OP.  When you have trends moving as quickly as CBD in people and human foods, there is a need to have regulation quicker and sooner.    

Pet food is big business for the United States.  One study reports that 63. 4 million US households own a dog and 42.7 own a cat.  Think about how many food bowls that is and how much people love their pets.  There is never a more neutralizing question to a pet parent when you say – do you have a cat or dog?  For those of us that work in the pet food industry and to the marketing gurus out there, this phenomenon has been identified as pet humanization.  These days, it seems nothing is off the table for your pet – home service veterinary care, pet bakery’s, pup crawls, pet birthday parties, pet play dates, dog parks, and more accessories than any dog could want.  It does not stop there, this humanization of our pets applies to what we feed them.  Take one look down the grocery store aisle and you will see all the human food trends – natural, organic, made with ancient grains, made without GMOS, Grain Free, no artificial flavors, no by product, made with antibiotic free chicken, includes omega fatty acids, and super food ingredients.  This list can go on and on.  What people want for themselves, they even desire for their pet – waffle and chicken flavored treats, pepperoni pizza, Korean BBQ jerky – just to name a few off the top of my head.  

Naturally, with marijuana becoming legalized in various parts of the world, and food seeing the addition of ingredients like hemp and CBD, people are curious if their dogs would benefit.  As a

result, a market for dogs is created.  A couple of online searches at retailers and you can see a variety of treats and chews providing your pet hemp or CBD via their food.  Many of these products even include the impression they can improve life in some way for your pet, whether it’s cancer, arthritis, anxiety.  One article stated the sales of all CBD products could soar by $22 billion by 2024 and while pet food is only about $25 million in sales, there is data to support that pet parents are interested in providing CBDto their pets. (Phillips Donaldson, Debbie, CBD Craze in Pet Food and Human Food Goes Global, Pet Food Industy.com, August 19, 2019.   Some research out there indicates that the pet CBD market will grow faster than the overall CBD industry and increase to $20 Billion by 2024.  See New Research Forecasts Pet CBD Market, Pet Business Staff, 02/10/2020.  Pet Business. 

So really, how great is this?  While you can’t necessarily smoke a joint with your dog, there is a huge and growing market out there for pet parents to truly provide a treat for man’s best friend with some form of CBD or other hemp ingredient. Just one problem, despite this market and a growing increase in these products being readily available online or in retail stores, it’s actually not legal to sell pet food with CBD or hemp in it.  It’s not legal at all and that seems to be forgotten, not enforced, and misunderstood by consumers hoping to treat their pets. 

With an evolving landscape of state’s approaches to marijuana for recreational use or for health purposes, it’s easy to be confused.  I mean the terminology alone is confusing – marijuana, THC, CBD, hemp – what really is the difference in these ingredients? Does anyone truly know and are they now being used as marketing claims without communicating to the customer the differences.  Regardless, marijuana is still illegal according to federal law.  But what about when it comes to food for our pets.  In the 2018 farm bill, hemp was removed from the list of controlled substances adding another layer of perplexity.  This left state feed control officials needing clear communication on the regulations.  Therefore,  AAFCO released the guidelines on Hemp in Animal Food on March 5, 2017 and updated on May 1, 2019.   Their statement was clear, “ hemp and hemp products may not be used in the animal feed or pet food in the United States.” (See Statement).   AAFCO further clarified in their statement how an ingredient for animal food becomes approved and noted as of May 1, 2019, there has been no scientific evidence presented on the use of hemp or hemp related ingredients in pet(animal) food for regulatory bodies to review.  AAFCO, Section: Guidelines on Hemp in Animal Food, https://www.aafco.org/Portals/0/SiteContent/Announcements/Guidelines_on_Hemp_in_Animal_Food_May_1_2019.pdf, May 4, 2020.   AAFCO even further expressed in their statementif products infused with CBD are used, they would need to be treated as drugs and the hemp ingredients used would not be appropriate for approval as an animal feed ingredient.  Lastly, and notably, AAFCO warned if CBD is used as a feed ingredient on a label, it could be deemed misbranded. 

FDA, like AAFCO, also pointed out there have been no approved food additive petitions for animal food ingredients stemming from hemp and no GRAS notices regarding hemp products for pets.  According to Section 301(II) of the FD&C Act, products labeled to contain hemp that may also contain THC or CBD is prohibited.  FDA, Section FDA Regulation of Cannabis and Cannabis Derived Products, Including Cannabidiol (CBD), https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#hempanimal, Question 24 -25, May 4, 2020.   FDA is aware of cannabis products being sold and marketed for pets but FDA cautions pet parents to to talk to your vet before providing CBD/Hemp products. This is funny because the American Veterinary Medical Association (AVMA) has specifically asked FDA to provide regulatory clarity regarding “cannabis-derived and cannabis-related products” so the AVMA can “assure the safe and appropriate use of these products in animal drugs, food, feed and food/feed additives.”American Veterinary Medical Association, AVMA, Section Blog:AVMA voices veterinary needs to FDA about cannabis products. July 23, 2019.  FDA nonetheless assures via their website, despite knowing this unapproved ingredient is out there, there have been no direct reports of animals harmed. FDA, Section, May 4, 2020. 

That’s always good to know until a pet is harmed and as a pet parent what do you do. On the one hand you have this chance to offer your pet a new food with a newer ingredient (okay – you know they aren’t really new to the market) treat but you know it’s not regulated.   CBD and Hemp related food for pets is here, on the market and accessible despite the lack of legality or approval for use in food, its growing.  Personally, I am one of those people favoring scientific evidence in the absence of information in deciding whether something is safe. I think it’s imperative to bring the industry stakeholders together to provide a basis for these products and have the government build regulations to keep our four legged dogs safe.   When looking back at food safety history, there are a lot of instances where that background was provided until there was a reaction to an adverse event. However, I like proactive approaches.  Today more than ever, with the changing retail landscape and the access to products for our pets, the regulatory agencies are behind the curve on CBD and hemp to our pets.  We can only hope no pets(or people) are harmed in the absence of enforcement and pet parents can find a way to calm their pets through a storm or when they leave the house for the day.  

 1. Guaranteed Analysis on a pet food label is required and includes, minimum percentage of crude protein, crude fat, and maximum of crude fiber, and moisture.  AAFCO Model Bill Pet Food Regulation PF4 Expression of Guarantees.  

2.  AAFCO has various prices for the book and an online version. https://www.aafco.org/Portals/0/SiteContent/Publications/order-forms/2020_PAPER_COPY_op_order_form.pdf?v20200428

3. Using AAFCO’s definitions, pet food is any commercial feed prepared and distributed for consumption by pets.  The term pet means dog or cat.  See AAFCO Model Bill Section 3 Definitions of Words and Terms, p and q.  

 4. 2019-2020 APPA National Pet Owners Survey Statistics – Pet Ownership and Annual Expenses. 

5. Landscaping the industry, most of the CBD products indicated it was a chew or a treat.  This is different then the complete and balanced food you might feed your dog daily.  Just a point of interest – the complete and balanced formula has certain requirements and the treat may be easier to slide, regulatory speaking.  

6. Title 21 United States Code(USC) Controlled Substance Act lists Marijuana as a Schedule 1 Substance.

7. AAFCO Guidelines on Hemp in Animal Food, https://www.aafco.org/Portals/0/SiteContent/Announcements/Guidelines_on_Hemp_in_Animal_Food_May_1_2019.pdf.

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