Cannabis Week in Review: A Deep Look at The FDA's Position on Cannabis Infused Products

Plenty of business meetings this week, traveling and examining continued opportunities for our industry.  One of the meaningful conversations this week focused on the FDA, and it’s position around the issue of CBD infused foods and supplements.

After the passage of the Farm Bill late last year, an Act that explicitly removed CBD derived from hemp from Schedule I, the Food and Drug Administration nonetheless informed the public that CBD is:

“Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of the law but also can put patients at risk, as these products have not been proven to be safe or effective. This deceptive marketing of unproven treatments raises significant public health concerns, as it may keep some patients from accessing appropriate, recognized therapies to treat serious and even fatal diseases.”

It is “illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements,” the statement said.  We know that the industry isn’t being appropriately regulated. The FDA tested products that were being branded as CBD Oil and found that some companies have been selling products that didn’t even contain cannabinoids, the chemicals that are found in Cannabis sativa plants.

Let me be clear. The FDA's issue is with CBD infused into the food supply and supplements.  Hemp-derived CBD (such as CBD oil) is entirely legal and enjoys the rights of any other legal product.

In the era of “fake news,” the last thing the cannabis industry needs are fake promises (or misleading products sold) to the consumer.  We know that CBD oil can do a lot - but overpromising does us no good. Companies marketing cannabis as “fix-all” should be watched, and those selling a product that doesn’t include the ingredients it promises, punished.  The problem? The FDA has not enforced its position. So thousands of SKU’s continue to pop up without any fear of punishment.

It is very understandable that the FDA is cracking down on a cannabis marketing practice that could dissuade some patients from getting medical advice and accessing proper treatment for any dangerous, life-threatening disease. It’s also important to remember that the FDA’s problem is with CBD when it comes to food and dietary ingredients.

There seems to be some potential leeway coming for CBD-infused beverages; the FDA commissioner would go no further than to say that “pathways remain available” for them to receive regulatory approval. This week New Age Beverage Corp., in the face of such uncertainties, announced a delay in the launch of its planned line of CBD infused beverages.

The cannabis industry needs to continue focusing on research to prove our claims. I’m proud to say that the investors and companies I work with are heavily committed to doing that.  In the meantime, consumers should be purchasing from companies that distribute high-quality products. Most importantly, consumers should look for the level of transparency and education the company provides about where the product comes from and the composition of the product. Customer testimonials are a great place to start.

The lesson for the new year?  Although the politics, the culture, law, and regulations are moving our way, toward greater freedom for purchasers and sellers of CBD and related products, the road remains rocky, at every level: local, state, and national. The key point? Some regulation is necessary to weed out the bad players; the companies doing it right have nothing to fear. We have nothing but a successful road ahead of us.

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Scott Gottlieb, “Statement from FDA Commissioner Scott Gottlieb, M, D., on Signing of the Agriculture Improvement Act and the Agency’s Regulation of Products Containing Cannabis and Cannabis-Derived Compounds,” US Food and Drug Administration Press Announcements (December 20, 2018).

Josh Long, “CBD Products Have Proliferated in Supplements Despite FDA Pronouncements,” Natural Products Insider (January 4, 2019).

Josh Long, “FDA: Products Containing CBD Cannot be Sold as Dietary Supplements,” Natural Products Insider (May 20, 2015).

Philaretos, “New Age Beverages: CBD-Infused Beverages, Delayed Indefinitely,” Seeking Alpha (January 3, 2019).