Ullman Quoted on Confusing Web of CBD Laws

August 13, 2019 | Complex Torts & Product Liability | Health Services | Cannabis

Marc Ullman was quoted in the Long Island Business News’ article, “Confusing Web of Laws Muddles CBD Industry.” The article discusses the confusing web of contradictory laws and inconsistent enforcement in products containing CBD.

The sudden swell in CBD products stems in large part from the passage of the 2018 Farm Bill. CBD is derived from the hemp plant, which prior to the Farm Bill was classified as a Schedule I controlled substance, a category that includes dangerous drugs such as heroin. The bill removed from the controlled substance list cannabis and cannabis derivatives with no more than 0.3 percent concentration of THC, the psychoactive component in marijuana.

“But there’s a fallacy that the Farm Bill made everything having to do with what we’ll call industrial hemp legal. The problem is that it’s a lot more complicated than that,” said Ullman. “What the Farm Bill did was take the Drug Enforcement Administration out of the picture, which is an enormous break for the hemp trade. As long as you are below 0.3 percent THC, the plant and things coming from the plant are not considered controlled substances.” “So the DEA can’t seize your property and take your money from the bank.”

But what the Farm Bill did not do was impact other laws. The Food, Drug and Cosmetic Act of 1938, which gave authority to the Food and Drug Administration to oversee the safety of food, drugs, medical devices and cosmetics, still applied.

While the FDA says CBD can’t go into food and dietary supplements, “it’s doing nothing to enforce its position,” said Ullman.

“There is consumer demand, and their competitors are reaping the benefits of selling these products and using that income to be able to discount products in the areas where they do compete,” Ullman said. “All of a sudden competitors have this pool of resources, which makes it difficult to compete against them. The lack of consistency on the federal level has really distorted the marketplace.”

Things get further muddled on the state and local level. In the wake of the Farm Bill, some states have not amended their controlled substance laws, so CBD is still considered a controlled substance. One such state is Nevada, even though it has legalized recreational marijuana.

“The state authorities say they won’t take any enforcement action again CBD, but several counties in Nevada have stated that since the FDA advises food and supplements containing CBD are illegal, they will take enforcement action,” Ullman continued. “So it depends on what county you’re in.”

While New York State shows no signs of taking enforcement action on CBD, “the New York City Department of Health has taken the position that they’re going to go into coffee shops, bodegas and health food stores that are selling things like CBD brownies or coffee with CBD and take them off the shelf and embargo them, whether these products make any claims or not,” Ullman said. “There’s also the concern that if they don’t know who they’re buying their brownies from, what’s the quality?” The city began enforcing the CBD ban July 1.

“It’s a tough time, and I lay a lot of this on the FDA,” Ullman continued. “We have this repeated absolute pronouncement that CBD is not a lawful ingredient in food or dietary supplements, and then the agency does virtually nothing about it,” concluded Ullman.


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