Friends – I was thinking about something this weekend that I thought I’d share with you. Yes, this is work-related, so no, it’s not really that interesting, and raises the question of why I would be thinking about the Cannabis industry on a Saturday morning whilst drinking coffee. As I’ve discussed before in my blog!, the FDA has said that hemp-based CBD in food is not kosher, for now. In that same post, I speculated that how regulatory agencies handle newly-legal, hemp-based CBD could be a decent proxy for what happens when (not if) the federal government legalizes Cannabis/THC.
So, since the FDA is currently not allowing hemp-based CBD to be added to food/beverages, when Cannabis/THC is legalized, what happens to the edibles market? If the FDA isn’t going to immediately allow hemp-based CBD in food/beverages, at least until the agency figures out how to regulate it, I can’t imagine the agency’s going to do anything differently with Cannabis/THC. The THC-based edibles market is much larger than the CBD-based edibles industry was pre-FARM bill (not many people eating gummies for potential pain relief).* Will the edibles market be prepared for true FDA regulation? Assuming there’s an immediate ban, would those manufacturers be willing to violate FDA rules post-legalization, rather than halting production while waiting for rules to be drafted, and how different would that risk be versus the current state of play? What will happen to my THC knish truck concept?
On a related note, a bill has been introduced in California to allow hemp-based CBD to be added to food/beverage products: link. More specifically, the bill clarifies that such products are “not adulterated”. This law wouldn’t trump the FDA rules – Federal law preempts state law under the Supremacy Clause of the U.S. Constitution – but it does clear the way for hemp-based CBD food/beverage products in California when the FDA finally allows it.
*I don’t have any actual data to back this claim up. If you’re reading this blog for facts and guidance, see the disclaimer below.
Written by: Marc Hauser