Plenty of former and current professional athletes advocate for the use of CBD in sports nutrition, and many of them have launched their own line of supplements or topical products in this space. However, selling CBD products to athletes is both riskier and less risky than selling CBD products to other demographics. To explain this conundrum, Rick Collins, partner at Collins Gann McCloskey & Barry, joins Sandy Almendarez, content director, Informa Markets, on this podcast to discuss the legal aspects of selling CBD in sports nutrition products. They cover:

Rick Collins will be speaking on the SupplySide Education series webinar “CBD in Sports Nutrition” on July 16 at 2 p.m. Eastern. Click here for more information and to register.

Podcast transcript:

Sandy Almendarez, director, content: Hi, Sandy here jumping in before we get to the meat of this podcast. We recorded this in early February when we thought Rick Collins would be speaking at SupplySide East in April. However, that show was canceled due to concerns around COVID-19. So, instead of an in-person presentation, Rick will be speaking at the SupplySide Education series webinar “CBD in Sports Nutrition” on July 16 at 2 p.m. Eastern. For more information and to register, go to naturalproductsinsider.com.

Sandy Almendarez: Hi, and welcome to a Healthy Insider Podcast. I am Sandy, and I am excited to have Rick Collins on the phone. Rick is a partner at Collins Gann McCloskey and Barry, and he is the president of the Nassau County Bar Association. Hi Rick, thank you so much for joining me.

Rick Collins: Hi, Sandy. Thank you for having me on the show.

Almendarez: As I mentioned, he is a partner at Collins Gann McCloskey and Barry, and he is a former Nassau County Assistant District Attorney. Currently he is the president of the Nassau County Bar Association where he earned the President’s Award in 2001. He has also earned an AV rating by the Martindale-Hubbell directory of lawyers, he’s listed in the bar register of preeminent lawyers, he can practice law in New York, Massachusetts, Pennsylvania, Texas, the District of Columbia and several other courts. But the main reason why we have him here on this podcast is because he is a recognized legal authority on anabolic steroids and other sports related performance-enhancing substances.

So, not that CBD is a performance enhancing substance, or maybe it is depending on how you look at it, but why do you think so many athletes are interested in using and promoting CBD?

Collins: Well, first let me thank you for that wonderful introduction. Most appreciated. Yes, a lot of what I do involves athletes. So, performance is big for athletes, certainly the dark side is anabolic steroids and things like that, but I also represent a lot of companies in the sports nutrition category. So, I'm very familiar with the sports nutrition market, which as you probably know traditionally has sold kind of aggressiveness, in-your-face marketing. Terms like “animal,” “monster,” “beast,” “ripped,” “shredded,” “jacked.” Those are the sorts of ways that sports nutrition products have traditionally been sold. And so, when we talk about CBD, I think it's been somewhat of a late bloomer in the category of sports nutrition. Maybe it was just too soy for the market for a while, or was seen that way because of its cannabis connection. But I think that that’s changing now, and we’re seeing more sports nutrition consumers gravitating to CBD. More of the on-the-go soccer dad, active lifestylers are starting to say, “Hey, CBD might be something that might be good for me.” And we’re seeing it I think because of the connection of CBD to the sorts of concerns that consumers in the sports nutrition category have typically looked at. Recovery, certainly, inflammation, pain after a workout, post workout delayed muscle soreness. But also, things like focus and concentration for pre-workout products. So, we’re seeing more and more products hitting the sports nutrition market, and you probably have seen too that some big names in sports have attached themselves to CBD. Rob Gronkowski, former New England Patriot, announced a CBD line or product that is going to be a topical. Terrell Davis, Denver Bronco, two-time Super Bowl champion, is advocating for NFL players to be able to use CBD and is actually the co-founder of a CBD infused sports drink. So, we’re seeing that and then I don’t know if you saw the news last week, but the biggest news, and I’ll cover more of this in the lecture, but did you see that Sports Illustrated has just announced it’s getting into the CBD business?

Almendarez: I did not see that.

Collins: Well, it just came out last week, which would have been unthinkable a few years ago. But Sports Illustrated announced it’s coming out with a limited-edition CBD recovery cream targeting the active health-conscious lifestyle sports folks. Finally, I think the sports nutrition category is recognizing CBD, and so if you’re in the sports nutrition space, you might want to start looking at it. Even though, as I’ll go into great detail in the lecture, the FDA has some major major concerns about it.

Almendarez: Does Sports Illustrated offer other types of products like this?

Collins: I guess, they’re partnering with a brand that is going to have a number of different SKUs overtime, but the first one is going to be the recovery cream. So, it’s big news, and even though when we look at sports obviously not all sports even allow CBD to be used and some of them test for it and it’s not permitted. Although, also, I don’t know if you saw the news last month about Major League Baseball and CBD?

Almendarez: You’re testing me.

Collins: I am indeed! So now if the listeners haven’t been keeping up on the news they absolutely must come to this lecture because, look, the CBD market is changing day by day. Almost every day there is some news, and I will make sure that my lecture is up to date on what’s going on, but just last month Major League Baseball removed, ready for this…removed cannabis from its drugs of abuse list. That is marijuana, that’s THC, that’s CBD. We’re talking Major League Baseball. I mean huge, huge news. And it was basically because concerns about growing addictions to opiates. The opiate crisis is hitting everybody, including sports, and so the league in association with the players union basically announced that they were changing the rules. And they will still test for, but will change the way they deal with marijuana-related conduct, and that would include CBD, so basically it’s going to be much more focused on getting the players to work out a treatment plan if they need it and things like that, rather than just straight-up punishment. CBD and cannabis rules in sports are changing all the time. A lot of people in NFL, former NFL players, are saying that football should have a similar policy, and that it would be a big step forward in managing chronic pain. And we all know that there are those who are very critical of football, American football with respect to head injuries and traumatic brain injuries that result from the violence of play. But, NFL, just so we’re clear, NFL continues to ban CBD. So, if you’re in sports and you’re interested in CBD, you really do have to know the rules of the sport that you’re in. CBD is not on the list of the World Anti-Doping Agency (WADA) or the US Anti-Doping Agency anymore. So, CBD has been removed as a prohibited substance from Olympic sports and sports that fall under WADA, so that’s also big news that was just a couple of years ago. And now, maybe other sports will adapt, but so far NFL hasn’t, NBA hasn’t, hockey league hasn’t. So, lots of doings there.

Almendarez: So, you mentioned some topical, and then of course supplements are huge with CBD, so can you talk about the difference in risk for the different types of CBD products geared toward athletes?

Collins: OK, so FDA, and we can talk about the Farm Bill in detail, but I think that’s a little beyond the scope, I want to stick kind of specific to sports. But the bottom line is that FDA has specifically articulated, repeatedly said, that CBD is not a dietary ingredient, it’s not a food additive, it’s not dietary supplement ingredient. You can’t put it in a vitamin, you can’t put it in a supplement product. The rationale for that has to do with a drug that’s on the market and other things. But the bottom line is FDA has specifically talked about supplements, it has not really looked at or articulated topical skin care issues, cosmetics. Cosmetics are regulated on a lower level of scrutiny than dietary supplements, and so that’s one of the reasons why we see a lot of these sports’ nutrition issues in sports. It’s taking a while to be adopted there. But we’re seeing more in the way of cosmetics and creams and topicals because I think that particularly the bigger companies feel that that’s significantly less risk than it would be for a dietary supplement.

But when we talk about risks for sports nutrition products containing CBD or for any CBD product marketed to athletes, the risks I think are both greater and lesser believe it or not than to the generalized CBD market. I think that they are lesser in the sense that there’s probably less talk about disease claims with sports nutrition products. Most athletes, people in sports, disease is not so much what they’re concerned about. Performance, feeling better, having more energy, that type of stuff, better focus is typically more of the sports nutrition category. Disease claims are really what has gotten a lot of CBD marketers in trouble, saying things, anything that’s a drug claim, curing or treating or mitigating or preventing a disease is what’s going to get you a warning letter.

So, in sports nutrition there will probably be less of that, so in a sense the risks are a little bit lower. Other than maybe inflammation from exercise or things like that, which might spill over to less specific inflammation rather than sports related. But I think the risks are also greater in sports nutrition because a lot of the people who have lifestyles or who are involved in competitive sports may be more likely to be drug tested than the average person. That’s where CBD in a sports product can cause bigger problems because if there’s a small amount of THC in that product, at some point, maybe with accumulated use, there’s enough there for somebody to test positive in a sports doping test. And there you’ve got risk to the consumer and potentially a lawsuit for the company.

Almendarez: So, what do you think is the best path forward for industry to push for legal CBD product recognition? Should this be through FDA or Congress or some other path?

Collins: Well, you probably were watching like I was back at the end of May last year when the FDA held a public hearing. They had over 100 speakers talking about safety data, information about CBD and the CBD market. A lot of people came away from that with the concern about whether there is enough research regarding dosing and side effects and drug interactions and use by certain populations, whether it’s adolescents or pregnant women or what have you, and what the science is. So, I think the biggest thing is the science needs to be done. There needs to be more research done by industry, so that FDA has the information it needs in order to establish safe levels for different populations and move forward with regulation.

The other thing I think that industry needs to do is really police itself better. The disease claims, the drug claims, are a black eye on the CBD industry. There has to be less of that. We need to stop that. We need to make sure that GMPs are followed. There’s been some concern about GMPs and good manufacturing practice compliance in this market, and so industry needs to step up.

Look, congress is doing its best, I think, and there are some bills out there to try to begin to move forward some type of legislative approach to allowing CBD, but I don’t know if that can really happen unless and until FDA has the information it needs in order to dispel some of the safety concerns and help them to set forth what are established safe levels.

Almendarez: Thank you so much, Rick, for joining me on this podcast.

Collins: Thanks, Sandy.

Almendarez: And a reminder that Rick Collins will be speaking on the SupplySide Education series webinar “CBD in Sports Nutrition” on July 16 at 2 p.m. Eastern. Go to naturalproductsinsider.com to register and get more information.