There’s a turf war brewing in the hemp fields

With the signing of the Farm Bill into law last week, big regulatory moves are ahead for the hemp and cannabis industries in 2019.

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The Farm Bill, however, does not affect the Federal Food, Drug and Cosmetic Act, which authorizes the Food and Drug Administration (FDA) to regulate ingestible products’ permissible ingredients. It also appears to be setting up a federal regulatory turf war between the FDA and the USDA, according to Hoban Law senior attorney Steven Schain.

Following the signing of the 2018 Farm Bill by President Trump, FDA commissioner Scott Gottlieb announced in a press release the agency plans to flex its regulatory authority over “cannabis and cannabis-derived products, including cannabidiol (CBD).”

“In short, we treat products containing cannabis or cannabis-derived compounds as we do any other FDA-regulated products — meaning they’re subject to the same authorities and requirements as FDA-regulated products containing any other substance,” Gottlieb said. “This is true regardless of the source of the substance, including whether the substance is derived from a plant that is classified as hemp under the Agriculture Improvement Act.”

A farmer harvests hemp at Murray State University's West Farm in Murray, Ky. (Ryan Hermens/The Paducah Sun via AP)

Schain said the Farm Bill delivered “a devastating body blow to both the DEA and its increasingly impossible to justify $2.2 billion budget,” but the “million dollar question” still remains.

“The Department of Agriculture and Food and Drug Administration’s 'hemp governance turf war’ will intensify with the Agricultural Department overseeing hemp cultivation and extraction and the FDA regulating hemp-based food additives and health and beauty products,” Schain said. “The million dollar question is whether the FDA deems oil-based hemp derived products like cannabidiol a verboten food 'adulterant.’”