Earlier this year, the U.S. Food and Drug Administration (FDA) concluded that existing regulatory frameworks for food and supplements are not appropriate for cannabidiol” (CBD) and the agency will “work with Congress on a new way forward.”
Since this announcement, speculation on how FDA and Congress will work to handle the ever-evolving over $9.1 billion U.S. market has continued. Many stakeholders are frustrated by FDA’s seeming inaction on CBD. The 2023 Farm Bill renewal process is one area where Congress might change how CBD is regulated. It was, after all, the 2018 Farm Bill that legalized hemp.
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Below, we provide some of the most recent updates on the discussion and activity surrounding regulating CBD:
- March 17, 2023: Congressman Morgan Griffith (R-VA) and Congresswomen Angie Craig (D-MN), reintroduced two pieces of legislation to: (1) Regulate CBD products as food or beverage additives (HR 1628) and (2) Regulate CBD products as dietary supplements (HR 1629). These pieces of legislation are identical to bills introduced in the 2021 Congress. However, these bills are garnering attention because of FDA’s call to Congress.
- April 17, 2023: The House Committee on Oversight and Accountability Chair James Comer (R-KY), announced that the Committee will be investigating FDA’s “failure to regulate…CBD products as dietary supplements.” Comer sent a letter to FDA Commissioner Dr. Robert Califf raising concerns surrounding FDA’s inactivity and that the “agency’s failure to regulate CBD products could allow dangerous products to come to the market.” The Committee is also requesting documents and information from the FDA.
- April 17, 2023: the Cannabis Regulators Association (CANNRA) sent a letter to Congress urging action on hemp-derived cannabinoids. Specifically, the letter asks Congress to address, among other things, the sale of intoxicating hemp-derived products, including: the “0.3% loophole” and the “derivatives loophole.” Whether cannabis is legal hemp or illegal marijuana depends upon the percentage of delta-9 tetrahydrocannabinol (delta-9 THC) in the product, by weight. With more than 0.3% delta-9 THC, the product is marijuana and legal hemp, and its derivatives contain less than 0.3% delta-9 THC. CANNRA rightly points out that tying the definition of legal hemp and illegal marijuana to the delta-9 THC limit by weight has allowed lawful marketing of intoxicating cannabinoids such as delta-8 THC and large quantity/volume products with significant amounts of delta-9 THC that nevertheless meet the legal definition of hemp. CANNRA is just one of many industry groups and other stakeholders who are sending letters to Congress urging action on CBD to protect industry and consumers against deceptive products.
In our view, it may be difficult to accomplish a statutory framework for CBD in the Farm Bill process. However, as the 2018 Farm Bill both legalized hemp and created the “loopholes” permitting the lawful marketing of intoxicating cannabinoids and very high levels of delta-9 THC, there may be efforts to address these issues this year.
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We would be happy to assist you in any of your cannabis law questions, comments, or concerns. Please contact our cannabis group attorney’s Tish Pahl (tpahl@ofwlaw.com) or Kyla Kaplan (kkaplan@ofwlaw.com) for assistance.
