Food and Drug Law Journal | June 9, 2019Read the Publication
FDA has been giving state-legalized cannabis products a free pass. Although the federal government has chosen not to enforce its strong anti-drug laws against state-legalized cannabis products, many of those cannabis products are being labeled, advertised, or otherwise marketed and used in ways that make them medical drugs that have failed to secure legally required FDA drug approvals. In addition, any state-legalized cannabis products that were not unapproved medical drugs would likely qualify as supplements, foods, cosmetics, or tobacco products that have largely failed to comply with related Federal Food, Drug, and Cosmetic Act provisions and FDA regulations. Consistent with the current federal policy of tolerance (despite federal laws making cannabis distribution and sale illegal), FDA could use its existing authorities to make state cannabis legalization less harmful and risky to the public health without interfering with any states’ ability to achieve its legalization policy goals. By thoughtfully exercising its enforcement discretion, FDA could make the labeling and marketing of state-legalized cannabis products more accurate, less misleading, and less troublesome for the public health. Going further, FDA could stop state-legalized cannabis from being offered in forms that are more harmful, addictive, or attractive to youth than the cannabis products typically offered in illicit markets. Through such an approach, FDA would be honoring its public health mission and protecting the integrity of our federal systems for regulating drugs, tobacco products, supplements, foods, and cosmetics. It would also do far more than current federal policies and practices to reduce some of the most serious and unnecessary public health risks from state cannabis legalization, which both supporters and opponents of cannabis legalization should welcome.