The possession, distribution, and use of cannabis remains illegal under federal law. Consequently, in isolation, employers may believe that enforcing their zero-tolerance policies for drug use (as referenced here, zero-tolerance refers to policies that prohibit any on-duty or off-duty use of unlawful cannabis products) remains a defensible position, including in response to employee complaints that such policies restrict employees’ otherwise permissible use of cannabis products. But how does state legalization of recreational and medical cannabis use fit into the mix? As states become increasingly tolerant of cannabis use, employers may need to reconsider whether their anti-drug and drug-testing policies are compliant with applicable law in order to minimize the risk of discrimination or failure-to-accommodate claims resulting from the employer’s restrictions on the purportedly lawful use of cannabis products.
Continue Reading Zero Tolerance for Zero-Tolerance Policies? The Impact of Cannabis Legalization on Workplace Drug Policies

A new rule from the U.S. Drug Enforcement Agency (DEA) has caused considerable concern within the cannabidiol (CBD) industry. The rule relates to the distinction made in the 2018 Farm Bill that removed certain cannabis products, such as industrial hemp and those containing hemp-derived CBD, with levels of THC not exceeding 0.3% by weight from the federal controlled substances list. THC is the psychoactive substances most associated with a marijuana “high.” DEA’s interim final rule appears straightforward at first glance: cannabis products containing more than 0.3% by weight are subject to DEA enforcement as controlled substances. The rule appears to mean, however, that THC levels can never exceed 0.3% at any point during the product’s manufacturing process, even if the final product offered for sale had THC at appropriate levels.
Continue Reading New DEA Rule May Threaten CBD Manufacturing

On July 22, 2020, the U.S. Food and Drug Administration (FDA) submitted draft enforcement guidance for cannabidiol (CBD) industry for review by the White House’s Office of Management and Budget (OMB). The draft guidance is not yet available.  No date or proposed deadline for producing a final policy, but this submission indicates that the FDA

Perkins Coie’s Food Litigation 2019 Year in Review assessed key legal issues facing the food and beverage industry. Among these topics was cannabis, and especially hemp-derived CBD, in food and beverage products. The 2018 Farm Bill ushered in a new era for cannabis and cannabidiol (CBD). Following the law’s passage, products containing CBD have continued

On the heels of the U.S. Food and Drug Administration’s (FDA) recent declarations regarding the safety of products containing cannabidiol (CBD), several companies have been hit with class action lawsuits alleging that that the company’s CBD-containing products are mislabeled and falsely advertised in violation of state law. Further class action litigation is expected given the

On July 31, Dr. Scott Gottlieb, the outgoing FDA commissioner, published an editorial in which he proposed how the FDA could expedite approval of food and beverage products that contain cannabidiol (CBD).

In the full article on PerkinsCoie.com, we review Dr. Gottlieb’s proposal which highlights areas of concern for business involved in the CBD

On March 28, 2019, the Federal Trade Commission (FTC) joined the Food and Drug Administration (FDA) in sending warning letters to three companies that market products that contain cannabidiol (CBD), which the companies claim can treat a variety of serious physical and mental disorders.

CBD can be added to foods and beverages, and can be synthesized, or derived from either hemp (which is legal at the federal level under the 2018 Farm Bill) or marijuana (which is illegal as a Schedule I controlled substance under the Controlled Substances Act). The FDA has not yet approved CBD as a food additive, and products containing CBD are currently deemed unsafe under the federal Food, Drug, and Cosmetic Act. The FDA has cited deceptive marketing practices as its main concern with respect to products that contain CBD, and has taken the position that selling products that contain CBD through unapproved therapeutic claims is illegal. Between 2015 and 2018, the FDA issued 18 warning letters regarding products containing CBD.  Each of the letters was triggered by drug claims. Ten of the warning letters also challenged adding CBD to dietary supplements, and one warning letter also challenged adding CBD to food. Despite the warning letters, the FDA has not yet undertaken a single enforcement action against a CBD product.
Continue Reading FTC Joins FDA in Sending Warning Letters to Companies Advertising and Selling Products Containing Cannabidiol (CBD) Claiming to Treat Alzheimer’s, Cancer, and Other Diseases