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.