The FDA is going to end up Chief Regulator of all things cannabis. Take a deep breath, feel the conflict, move through it. You’ll be OK. Now, let’s talk about when and how this will happen, and take notice that it has already started; just because you didn’t see it happening doesn’t mean it isn’t. Maybe it’s all for the better, we’ll see.
I really believe that federal officials exist to protect our society and get better products into the marketplace. This has helped make America the safest place to live and our products are trusted throughout the world. But, policies need to change as the times change, and most people recognize the DEA’s policy of seizure, arrest and incarceration has been a disaster. So we need different policies, managed by people who aren’t invested in 50 years of failure.
The FDA is closely following this state-by-state social experiment with cannabis. The end-game arrives when something happens to prod Congress into action. This is how the FDA has operated for decades, always waiting until politicians and the general public demanded action; insisting the FDA reluctantly make something work. Cannabis regulation will be the same.
There will be a process allowing for public input. It is stage-managed by the FDA and industry lawyers/consultants, with rule-making that extends over 6 years. Dissatisfied parties often file lawsuits during and after the process and they almost always lose. Dramatic realignment of the industry and consolidation of the marketplace with improved products meeting uniform, enforced standards is generally the outcome. And the cost of entry into the marketplace goes up dramatically, to the benefit of early market entrants.
When it comes to creating new federal regulations affecting American’s health and wellness – it’s the FDA that has “stepped up”, usually reluctantly, to regulate medical devices, tobacco, home pregnancy test kits, genetic lab testing, etc. And the process has already started for cannabis. Here is how it could play out:
Cannabis buds/leaves for smoking will have their own regulatory scheme, like the one recently created for tobacco [21 CFR 1140]. Heirloom or backyard cannabis growing will probably be allowed, just like making beer or wine for craft purposes – for personal use or gifts, but not selling it.
Purified extracts of cannabis with real medical claims are already regulated as new drugs under 21 CFR 201. These special formulations could be distributed for retail sale in pharmacies, supermarkets and food stores via a well-established FDA process called ‘Rx to OTC switch’. All that’s needed are larger clinical trials, and the FDA is constantly working to make those easier to be managed via social media.
Cannabis edibles will have a revised ‘medical food’ category [21CFR 101] that merges with foods making health claims. Cannabis oil can be regulated as an OTC drug [21CFR 300] under a new cannabis monograph and the United States Pharmacopeia is already considering a USP monograph to set that standard.
Another important issue is to identify the upcoming ‘pinch-point’, since that is where extra value can be obtained. There are multiple ‘constriction points’ in every product stream, but for cannabis, they all converge at one place – laboratory testing.
Lab tests, where nothing can be hidden. Lab tests have to be reproducible or the lab gets shut down. And lab tests are the FDA’s sweet spot. The Agency knows how to inspect lab results, track it back to products, forcing recalls and shutting down producers who don’t meet the standards and regulations. It’s an easy way to ensure honesty and integrity.
The FDA’s work is simplified by the seed-to-sale system mandated by the states. All the FDA has to do is simply download the data from lab testing, perform spot audits of the labs – just like it does with other industries – and follow the data back to the grower or producer to shut down businesses making bad product or product that doesn’t meet potency and safety requirements.
We know one laboratory that has already offered its test methods to the FDA, and their own labs will develop improved methods. The process is inevitable, and opens the cannabis market in new ways for the best-prepared businesses.