USDA and the Food and Nutrition Service (FNS) have been quite active during the first few months of Brooke Rollins’ tenure as Secretary of the U.S. Department of Agriculture. For example, USDA has granted waivers to Nebraska, Iowa, and Indiana which will permit those states in January 2026 to exclude soft drinks and/or candy from SNAP eligibility. USDA has also issued a directive designed to restrict SNAP benefits to U.S. citizens and legal residents and worked with the U.S. Department of Justice to indict a USDA employee and several store owners for conspiracy and misappropriation of millions of dollars in SNAP benefits.
On June 5, 2025, FNS’s Administrator James C. Miller issued guidance reminding SNAP retailers that “it is a program violation to accept SNAP benefits for foods and drinks containing controlled substances such as cannabis/marijuana.” To be blunt, FNS’s most recent issuance can only be described as agency action that is deep in the weeds. While many SNAP beneficiaries (including Stanley Lafleur aka “Mr. EBT”) wish they could “buy some weed with EBT,” it comes as no surprise to SNAP retailers or beneficiaries that cannabis-containing products are not SNAP-eligible.
It is perplexing that the agency concluded that the ineligibility of marijuana was an important enough issue to issue guidance thereon. Perhaps Administrator Miller concluded that it needed to because FNS’s SNAP Retailer Guide fails to mention “marijuana,” “cannabis,” or “drugs” a single time and only mentions “controlled substances” once. Given the proliferation of sales of food and beverages containing cannabis and because medical marijuana is legal in 39 states and the District of Columbia and legal for recreational use in 25 states and DC, perhaps FNS believes that retailers are confused. That seems highly unlikely, including because cannabis will remain a “controlled substance” even if the Drug Enforcement Agency moves cannabis from Schedule I to Schedule III of the Controlled Substances Act. Moreover, U.S. Food & Drug Administration (FDA) guidance still holds that it is illegal to “introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which THC or CBD has been added.” Stated differently, foods and drinks containing THC or CBD remain entirely illegal under federal law, notwithstanding the legalization and/or decriminalization under state law.
Given the inconsistencies between federal and state laws and regulations, it’s high time for FNS, FDA, and DEA to jointly hash out a plan for cannabis products in the SNAP program. In the interim, FNS’s guidance makes clear that SNAP retailers are prohibited from “accepting SNAP benefits for foods and drinks containing cannabis/marijuana.”
OFW Principal Stewart Fried provides regulatory advice to and represents retailers across the United States on SNAP and WIC issues before FNS and the federal courts.