With the legalization of industrial hemp, many are eager to jump into the booming market for cannabidiol (CBD) and hemp-infused products. However, for manufacturers and retailers of ingestible CBD products in particular, it is prudent to look before jumping headfirst onto the “green wave.”
The U.S. Food and Drug Administration (FDA) issued a press release on the evening of Monday, November 25 concerning its recent enforcement actions and a regulatory decision concerning products that contain cannabidiol (CBD). The Warning Letters follow FDA’s trend of focusing its CBD product enforcement on unapproved drug claims. The regulatory decision stated in the press release concerns FDA’s decision that CBD is not generally recognized as safe (GRAS) for use as a food additive.
The fifteen (15) Warning Letters, each dated November 22, 2019, were issued to companies for marketing various CBD products. The products identified in the Warning Letters spanned conventional foods, dietary supplements and animal products. FDA made specific mention in several Warning Letters about statements regarding the use of CBD products in infants and children.
The press release also included a statement that the agency cannot conclude that CBD is generally recognized as safe (GRAS) among qualified experts for use in human or animal food. Based on this conclusion, the FDA updated its Consumer Update on CBD: “What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD.” The Consumer Update now provides additional information regarding safety concerns. Regarding these changes and its decision on CBD’s use in food, the FDA states:
Many unanswered questions and data gaps about CBD toxicity exist, and some of the available data raise serious concerns about potential harm from CBD. The revised Consumer Update outlines specific safety concerns related to CBD products, including potential liver injury, interactions with other drugs, drowsiness, diarrhea, and changes in mood. In addition, studies in animals have shown that CBD can interfere with the development and function of testes and sperm, decrease testosterone levels and impair sexual behavior in males. Questions also remain about cumulative use of CBD and about CBD’s impacts on vulnerable populations such as children and pregnant or breastfeeding women.
Apart from the press release and Consumer Update, it does not appear that the FDA has provided any other documentation on its GRAS decision, such as in a formal report or white paper. Such documentation will be valuable to establish what data and information needs to be gathered to establish the safety of CBD.
The Warning Letters issued late last week highlight FDA’s continued concerns related to the use of CBD. Common to most Warning Letters are unapproved human drug claims associated with serious diseases, including cancer, autism, opioid addiction, post-traumatic stress disorder, diabetes and Alzheimer’s disease, among others. The one exception appears to be the Warning Letter issued to Apex Hemp Oil LLC, of Redmond, Oregon. That Warning Letter cites only limited claims such as “helps cells regenerate,” “the answer for sore muscle aches,” and “balances the mind and body by promoting natural healing through the endocannabinoid system.” The Warning Letter includes a number of animal health claims, including one for treatment of “Arthritis & joint discomfort.” It is not known if this Warning Letter is an outlier, or suggests the agency will increase its focus on CBD veterinary claims or human structure/function claims.
Along with these issues, the FDA raised issues with the use of CBD in:
Over the last several years, FDA has sent Warning Letters to other companies that sell products containing CBD that claim to prevent, diagnose, mitigate, treat, or cure diseases, such as cancer and Alzheimer’s. This most recent action makes it clear that FDA will take action against products that make claims that could result in consumers putting off obtaining important medical care due to the unsubstantiated claims. Additionally, this action underscores FDA’s need for additional data to establish safety for the use of CBD in human and animal food and dietary supplements.
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Husch Blackwell has experience working with companies on how to market CBD products in light of FDA and FTC’s enforcement actions. Our Cannabis and FDA lawyers have the necessary scientific and regulatory expertise to assist companies considering making or marketing CBD or cannabis containing products. Contact Seth Mailhot, Steve Levine, Emily Lyons, or your Husch Blackwell attorney.
Marshall Custer was quoted in the November 11, 2019 edition of Law Week Colorado on the U.S. Department of Agriculture first guidance on how
hemp can be lawfully produced under the 2018 Farm Bill.
Read the article here.
Last week, the US Center for Disease Control and Prevention (the “CDC”) announced what the agency considers to be an important breakthrough in their investigation on vaping illnesses. While the CDC has not ruled out other possible factors, the investigation has revealed a correlation between those suffering from symptoms and Vitamin E acetate. The CDC considers the compound to be a “potential toxin of concern”. Of the 29 lung tissue samples tested, all had detectable levels of Vitamin E acetate. Tetrahydrocannabinol (“THC”) or its metabolites were found in 82% of the samples and 16 of 26 patient sample contained Nicotine metabolites.
These results are consistent with a findings by New York health officials in September and make sense since Vitamin E acetate is used as an additive in THC and other vaping products. While there may be multiple causes for this outbreak of illnesses the CDC finds the correlations found to Vitamin E acetate and vaping related illnesses in 10 states to be “noteworthy”. Pending the completion of the investigation, the CDC has recommended people refrain from the use of ALL vaping products with THC, no matter where they are sourced.
Simultaneously, the Trump administration has indicated forthcoming changes to laws and regulations surrounding vaping and will deliver final decisions next week. The President has indicated the possibility of raising the legal age of use for vaping devices to 21.
As a result of this guidance and dire warning from the CDC more states and localities may implement stricter restrictions on vaping devices and substances.
On January 1, 2020, the Illinois Cannabis Regulation and Tax Act will legalize adult-use retail marijuana across the state and bring with it a hefty regulatory framework. Continue Reading Deep in the Weeds: Hidden Employment Issues in Illinois’ New Retail Marijuana Law
Today, the United States Department of Agriculture (the “USDA”) released a draft interim final rule regarding the establishment of a domestic hemp production program. We expect the interim final rule to be published in the Federal Register in the next day or so, which will initiate the 60-day public comment period. This rule establishes rules to approve state and tribal plans to regulate the production of hemp pursuant to the Agriculture Improvement Act of 2018, or the 2018 Farm Bill. Continue Reading USDA Interim Hemp Regulations
On Wednesday, the House of Representatives passed the Secure and Fair Enforcement Banking Act of 2019 (“SAFE Banking”) by a vote of 321-103. The final vote, which required 2/3 majority of the House, included 229 Democrats and 91 Republications.
Congressman Ed Perlmutter (D-CO), the bill’s sponsor who first introduced the legislation back in 2013, amended the bill ahead of Wednesday’s floor vote to broaden its GOP appeal.
On Friday, House leadership confirmed that the Secure and Fair Enforcement Banking Act of 2019 (the “SAFE Banking Act”) is scheduled to receive a floor vote this week. This announcement follows a strenuous legislative process to normalize banking for the cannabis industry.
Beginning this summer, the Food and Drug Administration (FDA) through its Office of Criminal Investigations, launched a criminal probe to investigate the vaping-related lung illnesses that have affected over five hundred people across the United States. The Centers for Disease Control and Prevention (CDC) has a parallel investigation tracking the incidences of the illness. Both the FDA and CDC are working with state and local health officials to investigate the increasing number of cases nationwide.
Continue Reading FDA Announces Criminal Investigations of Vaping-Related Illnesses
A California federal judge recently reminded cannabis trademark owners that the manufacture and sale of cannabis products remain illegal under federal law, so they cannot challenge federal trademark registrations based on common law prior rights.
Continue Reading Cannabis’ Unlawful Status Continues to Frustrate Brand Owners