Last year’s Farm Bill was supposed to legalize hemp and its derivatives — so why is the FDA dragging their feet when it comes to federal regulation of the booming industry?
The nation is going through a marijuana revolution, but officials throughout the federal government continue to live in the prohibitionist, anti-drug eras of ages past. But that’s no longer good enough for many lawmakers on Capitol Hill.
A bipartisan group of Senators and Representatives are increasing pressure on the Food and Drug Administration to release and implement new rules for cannabidiol, or CBD — a non-psychoactive chemical compound found in cannabis — after Congress legalized industrial hemp last year, but lawmakers are increasingly annoyed that officials are dragging their feet. They say it’s causing confusion and costing American businesses money.
Last year in the sprawling Farm Bill, lawmakers including Senate Majority Leader Mitch McConnell successfully pushed to include a provision legalizing hemp — a type of cannabis plant that, unlike its cousin marijuana, contains less than .3 percent THC, the psychoactive component in pot — and its derivatives, which some lawmakers say explicitly meant legalizing CBD. But without formal guidance from the FDA, state and local officials from New York to Nebraska have started cracking down on the non-psychoactive compound.
Now, these lawmakers are demanding answers from the agency.
“In light of the aforementioned state enforcement actions and the resulting confusion, we are calling on FDA to swiftly provide guidance on lawful pathways for food products with CBD,” Rep. Chellie Pingree (D-ME) and 11 other lawmakers wrote FDA Commissioner Scott Gottlieb last month. But today he unexpectedly resigned, which could further delay the agency’s action.
Specifically, they want to know when the agency will release guidance for CBD products, and if the FDA is reaching out to the states and localities that are cracking down on CBD and alerting them that the products are now legal. They also are pressing the agency on when it plans to hold its long-promised public hearing on the issue.
The FDA’s slow movement on the rules is especially frustrating lawmakers who have waited years for the federal law to change on hemp and CBD. Back in 2012, Sen. Ron Wyden (D-OR) introduced the first hemp legalization bill after going to Costco with his wife and seeing foreign-made CBD products, but not American made ones.
“If you can buy [it] at Costco you ought to be able to grow it in Oregon, so our farmers end up winning and farmers in Canada and China aren’t laughing all the way to the bank,” Wyden tells Rolling Stone.
Wyden teamed up with Leader McConnell and others to usher the legalization of hemp through Congress, but now the FDA seems to be the remaining roadblock. Part of the confusion stems from the nation’s continued criminalization of marijuana, which is still listed as a Schedule I narcotic, along with heroin. “The bill legalized hemp and its derivatives, which means CBD,” Wyden says. “The FDA just hasn’t stepped up to affirmatively update its regulations so they comply with federal law.”
Wyden says he gets asked a lot if the FDA is going after CBD companies, and so far it seems that only state and local authorities are the ones spearheading these crackdowns. “We don’t see evidence of that, but the fact that they haven’t updated the law is taking a toll,” Wyden says.
One problem for companies who are trying to take advantage of the new law is the fear over selling their products interstate, so until the FDA acts, some lawyers are counseling CBD companies to only sell their products within the states that they’re based. That might keep them safe from feds, but it cuts them off from a massive market that’s open to their foreign competitors — and that’s why lawmakers are trying to pressure the agency to act swiftly.
“These agencies by and large move at glacial speed unless somebody comes along and pushes them,” Wyden said.
But so far the agency has only pointed to a statement from Commissioner Gottlieb from back in December on the day the act was signed into law by President Donald Trump. A request for comment since he announced his resignation was not immediately returned.
“Given the substantial public interest in this topic and the clear interest of Congress in fostering the development of appropriate hemp products, we intend to hold a public meeting in the near future for stakeholders to share their experiences and challenges with these products, including information and views related to the safety of such products,” part of that letter reads.
The FDA says it also plans to respond directly to the members of Congress, but they’ve been given no timeline for action.
“We’re planning to seek broad public input on this pathway, including information on the science and safety behind CBD. But we know that this process could take time,” Gottlieb said at a conference last week. “So we’re also interested in hearing from stakeholders and talking to Congress on possible alternative approaches to make sure that we have an appropriately efficient and predictable regulatory framework for regulating CBD products.”
Without strong FDA guidelines, critics say there’s another huge problem plaguing the nation’s new CBD industry: Mislabeling.
In 2017, the Journal of the American Medical Association examined 84 CBD products and only found that 31 percent of them were labeled accurately, and that 20 percent of them contained THC.
“When we see [studies showing] large swaths of this marketplace are selling products that either contain no CBD whatsoever or contain elements of THC, then those that are seeking therapeutic benefits aren’t able to be able to develop a regiment that works for them,” Justin Strekal, the political director with marijuana advocacy group NORML, told Rolling Stone. “We wouldn’t allow companies to say that they’re selling Tylenol and they’re only selling sugar cubes.”
That’s partly why Strekal and others want to the FDA to step in, but merely having rules sent down from that agency won’t do a thing to change some state and local government’s laws that prohibit CBD. That’s why advocates say more work needs to be done at the local level to align their laws with the new federal statute legalizing the substance.
“It’s absurd that this would be something that law enforcement prioritizes, when there are so many other issues that they could be spending their time on, but they are enforcing the letter of the law. And that’s why it’s imperative that we change the laws,” Strekyl said.
But having the FDA send down its new guidelines will also help spur states to act, along with providing consumers with the knowledge that they can trust the products labeled CBD at their local stores. That’s why lawmakers and advocates continue to exert pressure from every angle they can, which for federal lawmakers starts with pressuring the FDA to act.
“We’re really trying to grab this from the grassroots up and make sure that they get out of the bureaucratic mode and actually put out the rules and state affirmatively: You can do it, because guess what? Quaint idea — it’s federal law,” Sen. Wyden of Oregon said. “It’s what Congress said. The law says hemp and its derivatives.”