Could the FDA Decision on CBD Be a Way Around Marijuana Reform?

For the better part of three years, the FDA has been looking into the possibility of regulating CBD and CBD-derived products. A few months ago, the agency determined that it did not have a pathway that would allow it to come up with proper regulations. Are they telling the truth, or could the decision actually be a way around having to deal with marijuana reform?

In its decision, the FDA punted the ball back to Congress. They pretty much told representatives and senators that regulating CBD was their responsibility. Without Congressional action, FDA regulators do not feel like they have any basis on which to write new rules.

Libertarians and conservatives are probably cheering the decision based on the belief that regulatory agencies shouldn’t exist anyway. But think about it. When was the last time a federal agency declined the opportunity to increase its power by writing new rules? The FDA decision to not regulate CBD seems suspiciously odd.

CBD and Alternative Cannabinoids

Federal rules regulating CBD would ostensibly create standards for quality, safety, testing, labeling, and more. Given that CBD is often marketed as a health supplement, FDA oversight seems reasonable. And don’t forget that CBD is also being added to food and beverages as well.

The flipside is this: a lack of federal regulation has led to the rise of alternative cannabinoids. The most infamous among them is delta-8 THC. Processors and manufacturers don’t have to test for delta-8. They do not have to report it as an ingredient in their products. Unless a particular state mandates it, they don’t even have to include delta-8 on product labels.

If you wonder why any of this matters, you probably don’t know that delta-8 THC is an intoxicant. It makes you high. Its effects vary somewhat from those experienced with delta-9 (the THC found in marijuana), but they are real, nonetheless. Not only that, but there are also other alternative cannabinoids with intoxicating effects. They can all be added to legal CBD products without issue.

States Will Have to Regulate

Perhaps the FDA has decided to not regulate CBD in order to give the industry de facto license to produce intoxicating products. In effect, the federal government would be giving people permission to get high on cannabis without ever taking concrete action on marijuana.

Whether or not this is truly the case, states are left to regulate CBD on their own. That may be a better proposition anyway. In Utah, CBD regulation has already started. According to the Beehive Farmacy in Salt Lake City, the state issued new labeling requirements in late 2022. They force producers to list alternative cannabinoids on product labels.

In the meantime, lawmakers are also looking at ways to effectively regulate delta-8 THC and other intoxicating alternative cannabinoids. It is probably only a matter of time before they completely ban any and all cannabinoids with intoxicating effects, at least outside of the medical market.

Congress Won’t Take Action

Getting back to the situation in Washington, don’t bet on Congress taking any action. Lawmakers have a history of relying on regulatory agencies to do their dirty work for them. No House member or senator wants to be saddled with a reputation for trying to pull the plug on CBD.  Earning such a reputation is too politically risky.

Congress will probably keep applying pressure to the FDA. There will be an ongoing back-and-forth between the two for the foreseeable future. And when all the dust finally settles, we may end up with CBD regulations after all. But it will take some time to get there.