In just over one year since the passing of the 2018 Farm Bill, hemp and cannabidiol (CBD) have seen an explosion in popularity. While the United States Department of Agriculture (USDA) is proposing and soliciting comments on final rules for regulating the growing of hemp across the United States, some companies are experiencing difficulties with the Food and Drug Administration (FDA). On November 15, 2019, the FDA issued a series of warning letters to companies for illegally selling products containing cannabidiol (CBD) in ways that violate the Federal Food, Drug, and Cosmetic Act (FD&C Act). Additionally, the FDA issued a Consumer Update that details its concerns about CBD products. However, Representative Collin Peterson of Minnesota recently introduced legislation that would require the FDA to classify CBD derived from hemp as a dietary supplement.
House Resolution (H.R.) 5587, currently titled “To amend the Federal Food, Drug, and Cosmetic Act with respect to the regulation of hemp-derived cannabidiol and hemp-derived cannabidiol containing substances.”, H.R. 5587 would do just that. Primarily, the legislation would amend the Federal Food, Drug and Cosmetic Act (FD&C Act) to include CBD in the definition of dietary supplements. Currently, companies that sell CBD may not make claims that their products prevent, diagnose, mitigate, treat or cure serious diseases, such as cancer, or otherwise violate the FD&C Act. Therefore, resolving this issue is vital to the production and marketing.
The push to allow hemp derived CBD to be marketed as a dietary supplement has enjoyed support from current Senate Majority Leader Mitch McConnell of Kentucky as well as Vote Hemp, a hemp advocacy group. Additionally, H.R. 5587 has three co-sponsors: Representatives James Comer (KY), Chellie Pingree (ME) and Thomas Massie (KY). Therefore, because H.R. 5587 enjoys bipartisan support in the House and traditionally, hemp related legislation has enjoyed the support of the current Senate Majority Leader, there is a moderate chance that H.R. 5587 will pass through at least one house and possibly the second.
The main reason that H.R. 5587 is so important is because Former FDA Commissioner Scott Gottlieb has stated that the problem is, “CBD didn’t previously exist in the food supply, and it exists as a drug under the [FD&C Act]”. Commissioner Gottlieb also stated that without a legislative fix, the FDA rulemaking process could take two to three years before it was completed.