FDA Authority over THC and Hemp-derived Additives to Food and Beverages
At a recent hearing before the House Energy & Commerce Subcommittee on Health, FDA Deputy Commissioner for Human Foods James Jones testified on the FDA's authority to regulate the sale of products containing THC, CBD, and other hemp derivatives.
When asked if "any food on the market today that contains THC is a violation of the Food, Drug and Cosmetics Act," Jones replied that "that is correct," later calling products that contain THC "adulterated", and therefore under the jurisdiction of the FDA.
Rep. Cathy McMorris Rodgers (R-WA) raised concerns about THC-infused edibles that parents and administrators in her district claim are turning up in schools, and asked Jones whether the FDA could “seize” these products or issue fines against companies selling, manufacturing or distributing them. Jones responded that “we can certainly remove those products from the market.”
In practice, however, Jones later mentions that local law enforcement has a much greater presence in communities, implying that it may be more within the scope of law enforcement to monitor the sale of these products. If an FDA inspector sees food marketed that contains THC, Jones clarified that the inspector would "ultimately issue a report that would then be followed by a compliance action.”
“We do not have even remotely the same presence in communities as local law enforcement do. These products—these ingredients used in food—make the food adulterated. We have opportunity periodically to take them off the market, but again, we’re not going to have nearly the presence in communities that that the local law enforcement would have.”
- FDA Deputy Commissioner for Human Foods James Jones
This implication became contentious later in the hearing, when Rep. Morgan Griffith (R-VA)—who has sponsored legislation to require FDA to regulate hemp and its derivatives like CBD after the agency declined to enact its own rules—questioned the idea that local law enforcement could adequately navigate the issue given a lack of resources to distinguish federally legal hemp from illegal marijuana.
When further pressed on whether the FDA or the DEA is responsible for taking the lead on regulating products containing THC and other hemp derivatives, Jones responded that "it really depends," but that "there definitely is joint jurisdiction on this, and so we would work with our federal law enforcement colleagues."
Legality of Various Additives
It is important to clarify, as Commissioner Jones did, that while THC is currently a Schedule I drug subject to regulation under the Controlled Substances Act (CSA) (though this is subject to change pending final action from the DOJ following a proposed rulemaking to reschedule THC), and CBD has not yet been approved as a food additive by the FDA, other hemp derivatives such as delta-8 and other cannabinoids are currently federally legal.
Congressional lawmakers have recently been exploring legislative options to remedy so-called "loopholes" that have allowed for the legal sale of these derivatives, by imposing a general ban on hemp-derived cannabinoids such as delta-8 THC. Rep. Mary Miller’s (R-IL) amendment to the 2024 Farm Bill, is one such example, which would remove cannabinoids that are “synthesized or manufactured outside of the plant” from the federal definition of legal hemp.
The House Appropriations Committee in July also took a stab at addressing these derivatives when it approved a spending bill that included language that mirrors the Miller Amendment to prohibit cannabinoid products such as delta-8 THC and those containing any “quantifiable” amount of THC, and a second bill which seeks to block the DOJ rescheduling of THC.
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