On August 18, 2023, comments were due to Congress on the bipartisan and bicameral request for information (RFI), which sought written stakeholder comments and analysis to “asses[s] the potential for a regulatory pathway for hemp-derived [cannabidiol (CBD)] products that prioritizes consumer safety and provides certainty to the U.S. market.”
By way of background on July 27, 2023, the House Energy and Commerce (E&C) Committee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone, Jr., (D-NJ), and Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Bernie Sanders (I-VT) and Ranking Member Bill Cassidy, M.D. (R-LA), announced the detailed RFI.
The RFI comes after the U.S. Food and Drug Administration’s (FDA or the agency) announcement earlier this year that “… existing regulatory frameworks for foods and dietary supplements are not appropriate for” CBD and the agency “will work with Congress on a new way forward” to address unregulated CBD products on the market. Additionally, the ongoing Farm Bill reauthorization presents an opportunity for Congress to address the legal status of hemp-derived cannabinoids, such as delta-8 tetrahydrocannabinol (THC) and delta-10 THC, that, although not federally illegal marijuana, are still intoxicating.
The RFI requested information on, among other things: (1) The current market dynamics for CBD; (2) Potential pathway(s) for CBD products to legally enter the market; (3) Scope of CBD and other cannabinoid products: (4) Interaction between Federal and state CBD and other cannabinoid regulations (or lack-there-of); (5) Safety of CBD and other cannabinoids in consumer products; (6) Quality of CBD products; and (7) Form, packaging, accessibility and labeling of CBD and CBD products.
Despite the very short turnaround time, numerous stakeholders interested in cannabis have submitted comments on the RFI: The following are a few examples of comments that have been submitted and made publicly available:
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- American Trade Association for Cannabis and Hemp (here)
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- American Herbal Products Association, United Natural Products Alliance, and Consumer HealthCare Products Association (here)
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- CbdMD (here)
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- Cornbread Hemp (here)
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- Council on Government Relations (here)
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- Council on Responsible Nutrition (here)
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- Hemp Beverage Alliance (here)
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- Natural Products Association (here)
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- U.S. Hemp Roundtable (here)
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- Wine & Spirits Wholesalers of America (here)
Submitted comments differ in terms of their determination of whether FDA has sufficient existing authority to permit CBD in consumer products, or if specific congressional action is needed to create a specific pathway for CBD in consumer products. There is also varying discussions on whether CBD should be deemed legal in consumer products and how to differentiate these products from prescription drugs. There is widespread consensus on the need for congressional and/or additional regulatory action against intoxicating, hemp-derived cannabinoids.
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If you have additional comments or questions on the RFI or other issues pertaining to cannabis, the OFW Cannabis Team is prepared to assist you. Please contact Tish Pahl (tpahl@ofwlaw.com), Kyla Kaplan (kkaplan@ofwlaw.com), or Ben Dash (bdash@ofwlaw.com) with any questions.
