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CBD Regulation Doesn’t Have To Wait For Comprehensive Cannabis Reform (Op-Ed)

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A former top Republican congressional staffer calls on lawmakers to effectively regulate CBD in foods and dietary supplements now.

By Brendan Belair and Kyle Turk, Natural Products Association

In many ways, the summer of 2019 seems like a lifetime ago, yet some memories are still vivid. On July 10, 2019, one of us (Brendan) was serving as staff director for Republicans on the House Judiciary Committee, sitting behind members on the dais, listening to all-too-rare bipartisan harmony. Both sides were in agreement: it is time for the federal marijuana prohibition to end.

While consensus is building in Congress to address comprehensive cannabis reform, it is running into the usual roadblocks big legislative initiatives face from a dysfunctional system.

And that is why, rather than continuing to spin their wheels, making noise but not progress when it comes to cannabis reform, Congress and industry advocates should take an easy win and recognize the value of incremental legislative change. That opportunity is addressing the multi-billion dollar CBD marketplace, and setting a safe level of daily consumption for consumers.

CBD regulation is ripe for action, and unlike some of its other reform dance partners, it has a chance to move forward in the 117th Congress. Momentum is everything on Capitol Hill, especially when dealing with laws as outdated as those regarding cannabis.

It was almost three years ago when Congress legalized hemp-derived CBD in the Farm Bill. If Congress can’t encourage the Food and Drug Administration (FDA) to finally regulate hemp, how can we possibly expect Congress to tackle full legalization of cannabis? Especially when, by all measures, the House has devolved into little more than political theater these days.

For more than four years, the Natural Products Association (NPA) has been asking FDA to provide consumers with assurance that the CBD products they consume are meeting a stringent regulatory threshold, and that manufacturers are provided guidance.

Instead of taking substantive action and responding to the industry call for regulatory clarity and certainty, FDA has slapped a few companies on the wrist for making false claims and left the bulk of the regulatory work to the states. More and more states are introducing proposals to regulate the CBD industry’s manufacturing, testing and labeling of products, putting us on a path toward a confusing and likely conflicting regulatory framework.

According to the Consumer Brands Association (CBA), there are currently 135 proposals in 38 states which threaten to further confuse the disparate CBD regulations already on states’ books. As CBA correctly points out, in the absence of federal action, these well-intentioned state CBD regulations have created a confusing, conflicting regulatory framework that fails to establish uniform requirements for the safe formulation, production, labeling and marketing of CBD products.

Advocates in industry and Congress alike agree it’s far past time for FDA to act. However, there continues to be diverging and often conflicting approaches. And unfortunately, meaningful congressional action is simply not going to happen until there is one united ask. Congressional attention is hard to get and even harder to keep. And it’s virtually impossible when members feel they have to choose between friends who want the same thing but have differing approaches on how to get there.

Currently, the House has offered one approach, the Senate another, and Majority Leader Chuck Schumer Schumer (D-NY) just introduced a third as part of his broad cannabis reform bill. Likewise, stakeholders are divided on whether the bill should include a pathway for food and how much authority to grant FDA. Such disagreements spell disaster for congressional action. Congress should introduce a new bipartisan, bicameral bill—one supported by both stakeholders and consumers. A fresh, unified start means a real chance at seeing reform become a reality this Congress.

This legislation should include a regulatory pathway for food, while at the same time preserving FDA’s inherent authority to regulate safety. If we fail to include dietary supplements and foods together under one piece of legislation, we are doomed to repeat the same mistakes we made with caffeine.

As a quick refresher, in 2013 under now NPA President and CEO Dr. Daniel Fabricant, FDA regulated caffeine levels in food and dietary supplements but the requirements for each were different. If caffeine was added to a food, it had to be included in the listing of ingredients required on food product labels while naturally present caffeine did not need to be listed as an ingredient. At the time, dietary supplements were not subject to these thresholds and did not require supplement markers to state caffeine levels on product labels.

We had energy drinks classifying themselves as beverages after establishing their energy ingredients as generally recognized as safe (GRAS), and other energy drinks marketed as supplements. This caused significant confusion among consumers and posed significant safety risks. CBD is a promising product that has untapped potential, however, if we fail to effectively regulate the market, bad actors who sell tainted products will ruin the reputation of the CBD market before it can materialize.

The good cannabis bipartisan vibrations from the summer of 2019 failed to produce any legislative results. This Congress can learn from that missed opportunity by using this August recess wisely and forging a unified approach.

Brendan Belair is the former Republican staff director of the House Judiciary Committee, and is a current consultant for the Natural Products Association. Kyle Turk is director of government affairs for the Natural Products Association.

Photo by Kimzy Nanney.

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