FDA Can and Should Regulate State-Legalized Cannabis to Protect the Public Health
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August 2, 2019 WASHINGTON DC | As states across the country legalize cannabis, new businesses are developing dangerous new cannabis products and marketing them in irresponsible ways. Former FDA official says that FDA could use its existing authorities to “make state cannabis legalization less harmful and risky to the public health” without stepping on any of the state’s legalization policy goals and without preventing consumer access to state-legalized cannabis.
FDA has a duty and a “public health mission” to ensure that the new state-legalized cannabis products comply with our public health laws to protect consumers from unapproved drugs, adulterated foods and supplements, or harmful or ineffective cosmetics, explains Eric Lindblom, former FDA official and Director of Food and Drug Law and Tobacco Control at the O’Neill Institute at Georgetown Law in How FDA Could Use Its Existing Authorities to Make State Legalization of Cannabis More Safe and Effective.
New state-legalized cannabis products go well beyond the plant-based products and concentrates previously offered in illegal markets. Products now include super-high-potency “dabs” and a range of drinks and foods that have been fortified with delta-9-tetrahyrdocannabinol (Δ9-THC). At the same time, a new wave of foods, supplements, cosmetics, and even pet foods have appeared that include cannabidiol (CBD), a psychoactive but non-intoxicating cannabis derivative. Adding to these problems, many state-legalized cannabis products are often marketed and sold with misleading or inaccurate, unapproved medical drug claims.
Lindblom is not the only one calling for more active FDA efforts to stop the marketing of cannabis products with unapproved medical claims or that are otherwise irresponsibly and illegally labeled or marketed. Former FDA Commissioner Scott Gottlieb declared “The CBD craze is getting out of hand. The FDA needs to act” in a recent Washington Post op-ed.
In his article, Lindblom notes that the more active efforts by FDA to protect consumers against harmful new cannabis products and marketing would be “entirely consistent with existing federal policy of generally tolerating state cannabis legalization.” The FDA enforcement efforts would not affect states ability to legalize cannabis for medical or broader purposes, but rather ensure that the products that are already legalized do not violate important federal public health laws.
Currently, thirty-three states and DC have legalized cannabis for medical use, with DC and 11 other states also legalizing cannabis for broader purposes. All cannabis products are still illegal under federal anti-drug laws, but the federal government has not been enforcing those laws against businesses or consumers in the legalization states. Hemp-derived CBD is not subject to federal anti-drug laws, but is still subject to other federal laws and regulations, including those administered by FDA to protect the public health.
The O’Neill Institute for National and Global Health Law at Georgetown University Law Center is the premier center for health law, scholarship, and policy. Its mission is to contribute to a more powerful and deeper understanding of the multiple ways in which law can be used to improve the public’s health, using objective evidence as a measure. The O’Neill Institute seeks to advance scholarship, science, research, and teaching that will encourage key decision-makers in the public, private, and civil society to employ the law as a positive tool for enabling more people in the United States and throughout the world to lead healthier lives.