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FDA Updates Its Position on CBD upon Signing of Farm Bill

Hours after President Trump signed the 2018 Farm Bill into law, the FDA released a lengthy statement from its commissioner, Scott Gottlieb, M.D., updating its position on CBD products intended for human consumption.

Flexing its muscles, the FDA pointed out that the Farm Bill “explicitly preserved the agency’s current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug and Cosmetic Act.” The FDA voices its concern over the number of drug claims being made about CBD products that are not approved by the FDA, cautioning the industry that all cannabis-derived products claiming to have a medical benefit must go through the FDA approval process for human use before being marketed. Similarly, the FDA reminds the industry that under the FD&C Act, it is unlawful to “introduce food containing added CBD or TCH into interstate commerce or to market CBD or THC product as dietary supplements, regardless of whether the substances are hemp-derived.”

Despite reaffirming its current stance against CBD products intended for human consumption, the FDA nevertheless signals a potential easing of restrictions on CBD, stating that it “will continue to take steps to make pathways for the lawful marketing of these products more efficient.” Recognizing the significant public interest and the potential opportunities that cannabis-derived compounds could offer, the FDA states that it is “committed to pursuing an efficient regulatory framework for allowing product developers that meet the requirements under our authorities to lawfully market these types of products.” To this end, the FDA will hold a public meeting in the “near future” for industry members to share their experiences and challenges with CBD-based products.

This new statement by the FDA signals recognition by the agency of the public’s intense interest in CBD-infused products. The CBD market continues to grow despite the FDA’s prohibition. Until it is approved by the FDA, however, using CBD as an ingredient in foods and supplements results in risks that include regulatory enforcement and exposure to liability in civil lawsuits.

For further information on cannabis and hemp law and policy, additional information can be found at www.wilsonelser.com/cannabis.

© 2019 Wilson Elser

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About this Author

Ian A. Stewart, Wilson Elser, Data Privacy Lawyer, General Liability Attorney
Partner

Ian Stewart handles complex litigation in state and federal courts, where he frequently defends catastrophic multi-party litigation. Ian’s practice includes product liability, professional liability, construction defects and general liability matters, as well as data privacy and intellectual property litigation.

Ian is committed to client communication and cost-effective litigation management. He is a proponent of efficient claim resolution, including alternative dispute resolution (ADR). He has served as a pro bono mediator and...

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Neil Willner, Wilson Elser Law Firm, White Plains, Health Care and Cannabis Law Attorney
Associate

Neil Willner focuses his legal practice on medical malpractice, dental malpractice, nursing home liability and general liability centered on complex litigation. His clients include physicians, prominent New York hospitals and nursing homes, and national dental corporations as well as summer camps. Neil served as a paralegal and a member of trial team in a medical malpractice defense firm while attending law school at night, giving him insights into all facets of the practice. Neil was also a law clerk at a New York firm working on product liability and medical malpractice.

While in law school, Neil was a member of a small team of students that drafted a handbook for employers of all sizes, guiding them on how to remain compliant with the National Labor Relations Act while maintaining a social media policy for their employees. Through this experience, Neil drafted and implemented various social media policies, including a policy for a major New York sports agency.

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