Member Blog: Federal Authorities’ Current Position On Cannabis In 2019

by Robyn Ranke, Eskaton Law

Marijuana is anything but boring. And the politics of cannabis gets more and more interesting by the minute. On the tails of the 2018 Farm Bill signed into law, as we predicted, hemp-derived CBD leads as the most controversial subject in the pot trade. Politicians and lawmakers are divided. Federal government agencies, like state agencies, have separate and distinct enforcement and regulatory authority which lends itself to polar opposite view points.

U.S. Attorney General Nominee William Barr Takes A Favorable 360º Turn

In less than a month since the Act was signed into law, we have the nominated Attorney General William Barr taking a 360 from former U.S. Attorney General Jeff Sessions. In Senate confirmation hearings just recently, newly appointed Attorney General William Barr stated that he would “not go after” marijuana businesses operating in states where cannabis is legal. Barr reasoned that companies relied on the Obama-era Cole Memo (which Jeff Sessions rescinded) that kept federal authorities at bay from criminal prosecutions under Federal law. We are all aware Federal law prohibits the possession and sale of marijuana. A new bill was introduced into Congress last Friday that would revive the relaxed Cole Memo enforcement guidelines.

USFDA Commissioner Scott Gottlieb Announces CBD Product Sales Illegal

In stark contrast, USFDA Commissioner Scott Gottlieb issued a press release statement and didn’t mince words. Gottlieb expressly stated that introducing CBD/THC food products into interstate commerce is illegal “regardless of whether the substances are hemp-derived” – as we predicted and discussed in previous blogs. Despite the FDA’s foreseeable regulatory posture, we continue to believe there remains the open question:

“Can you produce and sell CBD food products – marijuana or hemp-derived – so long as you do not tout its medicinal benefits? A question that has yet to be specifically addressed by lawmakers. Ironically, the states’ legalization of marijuana all began with medical marijuana because of its medicinal benefits as an alternative treatment.” 

Commissioner Gottlieb’s FDA Statement does not answer this question. 

Stay Tuned – We’re Staying On Top Of Cannabis Politics For You

An experienced corporate litigator having worked in both the private and government sectors, Attorney Robyn Ranke has taken a modern business approach to the cannabis industry and in working with cannabis business startups. Throughout her legal career, Robyn has represented a diverse base of business clientele in a variety of industries involving both complex and novel legal matters. Her diverse experience as a business litigator provides a valuable legal platform from which she is uniquely postured to address the regulatory hurdles, costly pitfalls, unique business transactions, and business litigation risks that confront California cannabis business owners today and into the future as state regulations continue to evolve.