Today’s public service announcement is that Congress wants to hear from you on a regulatory fix for cannabidiol (CBD) and other hemp-derived cannabinoid products. The request came down via the Energy and Commerce Committee on July 27, when it published a Request for Information (RFI) to “interested parties” on the topic. The deadline for RFI responses is August 18, 2023. You can email your thoughts on or before that date to CBD@mail.house.gov and CBD@help.senate.com.
Why is this happening now? The short answer is that Congress has another shot at the Farm Bill, which is the primary agricultural and food policy instrument of the federal government. In 2018, the Farm Bill removed hemp (and hemp-derived CBD) from the Controlled Substances Act. The Farm Bill is renewed every five years, so policymakers are ramping up for the 2023 version on pertinent topics– including CBD and other hemp-derived cannabinoids.
A better regulatory environment for CBD and hemp-derived cannabinoids is sorely needed. Commerce has outstripped regulations and enforcement is lax. The Food and Drug Administration (FDA) knows this, and published a statement earlier this year, awkwardly titled “Existing Regulatory Frameworks for Foods and Supplements are Not Appropriate for Cannabidiol, Will Work with Congress on a New Way Forward.” The first part of that statement was nothing new from FDA; the second clause was notable.
It’s disappointing that FDA waited nearly four years to get this statement out: the agency pledged to explore how CBD products could legally come to market over four years ago. Mostly, though, it seems they’ve been “looking at data” and firing off occasional warning letters to especially bad actors (as recently as last month, and going back to 2015). Meanwhile, almost no one is growing hemp.
The RFI is fairly long, but it’s broken down conveniently into topics, each of which contains one or more questions. Those topics are:
- current market dynamics
- regulatory pathways
- definitions for CBD and other cannabinoid products
- federal-state interaction
- form, packaging, accessibility and labeling
And here is what the Committee itself summarized as the high points of the RFI:
- Please comment on the concerns FDA has raised with regard to regulating most CBD products through existing pathways (i.e., conventional foods, dietary supplements, and cosmetics), and FDA’s view that there is a need for a new regulatory pathway for CBD products. If existing regulatory pathways are sufficient for regulating CBD products, please explain how these existing pathways can be used to address the concerns raised by FDA, as appropriate.
- How has the absence of federal regulation over CBD created a market for intoxicating, synthetically-produced compounds, such as Delta-8 THC, THC-O, THC-B, HHC-P, and others?
- How should a new framework for CBD products balance consumer safety with consumer access?
- What precedent exists in foods, dietary supplements, tobacco, and cosmetics for requirements of labeling to present risks to special populations in labeling (e.g., children, pregnant and lactating women, consumers taking certain drugs, etc.)? What amount and type of evidence has been required to support such requirements?
We expect to see a high number of responses to this RFI before the August 18 deadline. We encourage all interested parties to respond and create a useful administrative record on the topic. Finally, please understand that you don’t need to weigh in on everything set forth in the RFI– it’s actually better if you don’t! The most useful comments will be focused, supported by data and by reasonable policy considerations. Now is your chance.