CBD on Firm Ground Despite FDA Commissioner Scott Gottlieb’s Resignation

With his departure, CBD's legal status hangs in limbo.

Food and Drug Administration commissioner Scott Gottlieb announced on Tuesday that he is resigning in April, leaving multiple public health projects in legal limbo. Gottlieb defined his FDA tenure with a laser focus on consumer products he characterized as public health risks, including CBD, the non-psychoactive component of marijuana and hemp. In early February, the FDA advised multiple state and local governments during a crackdown on businesses that added CBD to food and drinks, but in the weeks leading up to his announcement, Gottlieb has remained relatively quiet about the substance.

One week before Gottlieb announced his resignation, he announced he would convene a panel to find a way forward for legal CBD, but with his departure, it’s not clear what will happen next. His most recent actions, however, suggest the future of CBD, hailed for its ability to soothe pain and anxiety, is promising.

What Has Scott Gottlieb Done About CBD So Far?

In December 2018, Congress passed the Agriculture Improvement Act, better known as the Farm Bill, which made hemp legal for interstate transport. This law seemed to open the market all the way up for CBD, which is often manufactured from hemp, which is closely related to the more tightly controlled cannabis plant.

But at the end of January, state and local health departments in Maine, New York City, Ohio, and some other locales began cracking down on restaurants, bakeries, and bars that were putting CBD in their products. The FDA would neither confirm nor deny that it was involved in the multi-state crackdown, but an FDA spokesperson told Inverse at the time that the administration was engaged in “ongoing communication with state and local officials.”

This confusing scenario left a lot of unanswered questions about the future of CBD, questions that Gottlieb’s sudden resignation left hanging in the air.

U.S. Secretary of Agriculture Sonny Perdue (right) with U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb, M.D. 

Flickr / USDAgov

What Confusion Does Scott Gottlieb’s Departure Leave About CBD?

After the multi-state crackdown, regulators stayed quiet for a while. Then, on February 27, Gottlieb announced that in April the FDA would convene a panel of experts to figure out how to better write regulations for the CBD market.

“We’re deeply focused on this. We have taken on other hard challenges before,” Gottlieb told the House Appropriations Committee at the time. “You have my commitment I’m focused on this one.”

Less than a week later, he announced his resignation. The first CBD panel has still not been scheduled, and it’s not clear whether it will happen before Gottlieb leaves in April. Gottlieb’s successor has still not been named, so it is also unclear whether the next FDA commissioner will be friendly or hostile to the CBD industry.

It’s also possible that CBD may become a minimally relevant issue. Critics have pointed out that Gottlieb’s crusade against menthol-flavored tobacco products may have made him the target of political donors. At the end of January 2019, Republican North Carolina Senator Richard Burr lashed out at Gottlieb, saying of the proposed menthol ban: “That’s not the America I signed up for.” He also accused Gottlieb of liking a tweet that was critical of President Donald Trump — perhaps an even more damaging accusation than regulatory overreach.

On Tuesday, Sludge reporter Alex Kotch pointed out on Twitter that Burr was the top recipient of campaign funds from tobacco giant R.J. Reynolds this past election cycle, suggesting that Gottlieb’s stance on menthol cigarettes may have contributed to his ouster.

On March 7, an industry source told CNBC that the worst-case scenario for the CBD industry would be an FDA that doesn’t care at all about clarifying rules around CBD. If Gottlieb’s resignation did have anything to do with tobacco, this scenario could end up being the case.

What Does the Future Hold for CBD?

Confusion and politics aside, though, other industry figures remain optimistic that CBD’s future is bright.

Smoke Wallin, the CEO of CBD company Vertical Wellness, Inc., told Inverse after the multistate crackdown in February that he doesn’t think President Trump and the Congress would have passed the Farm Bill just to make CBD illegal again. He’s confident that, in the end, the FDA will help the industry develop a regulatory regime that allows consumers to buy CBD, and he chalks up the current uncertainty to the beginning stages of a new industry.

“It’s not as simple as, ‘now [the farm Bill is] passed and now it’s going to be everywhere,’ because there’s been a crackdown since the passing, and we think that’s a normal, logical, and necessary step,” he says. Wallin says he welcomes FDA involvement in the CBD industry, arguing that it will help make products safer and more reliable for consumers.

“Knowing where your hemp was grown, what happened along the process, “ he says, “is really important to credibility for the whole industry.”

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