Two recent actions from the Biden Administration may have immediate consequences for the cannabis industry. First, a new Executive Order signed by President Biden reversed prior policy requiring federal agencies to submit guidance documents to the White House for review. Second, the Biden Administration distributed a memorandum to federal agencies asking them to postpone any rules published in the Federal Register for 60 days.

What do these actions mean for cannabis?

  • In light of the new Executive Order, the FDA withdrew its pending cannabidiol (CBD) enforcement policy guidance, which has been pending for months. The FDA submitted its draft enforcement guidance in July 2020. Without the layer of review at the White House, the agency may issue its CBD policy guidance on its own timeline. The year ahead might see this document released, but no formal timeline has been announced.
  • The U.S. Department of Agriculture (USDA) published a rule earlier this month regarding hemp. The final rule included a requirement that hemp testing labs be licensed by the DEA, but the agency delayed enforcement of that rule until the end of 2022. Given the Biden Administration’s recent memorandum, incoming officials at USDA may put a freeze on this final rule.

Meanwhile, legislative activity on cannabis continues apace. Voters in five states approved new marijuana laws. Last Congress, the House proposed a bill allowing hemp-derivatives like CBD to be regulated by the FDA as dietary supplements under the Food, Drug and Cosmetics Act and passed the MORE Act, which would have decriminalized marijuana. Senator Rand Paul (R-Ky.) proposed legislation increasing the limit for THC in CBD products from 0.3% to 1.0%. With the new Congress, and its Democratic control, further legislative action on cannabis may be forthcoming.

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Photo of Barak Cohen Barak Cohen

Barak Cohen represents two kinds of clients: companies and individuals facing government enforcement actions and investigations in highly regulated industries, particularly the healthcare and government contracting industries, and companies that need strategic business advice regarding compliance and regulatory matters in the cannabis industry.

Photo of Michael Bleicher Michael Bleicher

Michael Bleicher counsels and litigates privacy, data security, and First Amendment issues for clients in the technology and communications industries. He has in-depth knowledge of the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), state biometric privacy laws, and other federal and…

Michael Bleicher counsels and litigates privacy, data security, and First Amendment issues for clients in the technology and communications industries. He has in-depth knowledge of the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), state biometric privacy laws, and other federal and state privacy statutes.

Photo of Tommy Tobin Tommy Tobin

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false…

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.