FDA Can Seize Cannabis Edibles And Drinks, Agency Official Tells Congress, But Usually Just Sends Warning Letters Instead

A top Food and Drug Administration (FDA) official says the agency retains authority to remove cannabis-infused foods and drinks from the market, though that level of enforcement action is rare and is most commonly executed by local law enforcement.

During a hearing before the House Energy & Commerce Subcommittee on Health on Tuesday, FDA Deputy Commissioner for Human Foods James Jones was repeatedly pressed on the agency’s ability to prevent intoxicating cannabis products, including federally legal hemp derivatives, from being commercially sold.

While he said marijuana was generally not in FDA’s purview considering that it’s a federally controlled substance and therefore largely in the Drug Enforcement Administration’s (DEA) jurisdiction, any food or beverage containing an unapproved “adulterant” such as THC is subject to market removal by FDA under the Federal Food, Drug, and Cosmetic (FD&C) Act.

The full committee chair, Rep. Cathy McMorris Rodgers (R-WA), raised concerns about THC-infused edibles that she said are turning up in schools in her district and asked Jones whether FDA could “seize” such products or issue fines against companies selling, manufacturing or distributing them.

“We can certainly remove those products from the market,” he said.

That said, as Jones indicated, FDA has largely focused on bad actors in the hemp industry that are selling products marketed in misleading ways, or in a manner that might appeal to youth. And the agency’s enforcement actions have been largely limited to issuing warning letters, rather than directly seizing products.

“When the FDA is inspecting convenience stores or working with states to do so, if an inspector sees food marketed that contains THC, what is the inspector instructed to do?” Rodgers asked.

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Jones replied that he’d have to check with a field office to be sure, but “I expect that they would ultimately issue a report that would then be followed by a compliance action.”

He added that there is “definitely is joint jurisdiction” between FDA and DEA on addressing these issues, and so “we would work with with our federal law enforcement colleagues” in instances where, for example, intoxicating cannabis products were being found in schools.

However, if a person is concerned about underage access to these products, he advised that they first report it to local law enforcement.

“We do not have even remotely the same presence in communities as local law enforcement do,” he said. “These products—these ingredients used in food—make the food adulterated. We have opportunity periodically to take them off the market, but again, we’re not going to have nearly the presence in communities that that the local law enforcement would have.”

While FDA’s enforcement actions on cannabis have been largely hands-off in the past, the agency did partner with Hawaii law enforcement in a “unique” surveillance operation in 2022 that led to the arrests of two people associated with a hemp business who were suspected of violating state drug laws.

Also in 2022, FDA sent information to the Minnesota Board of Pharmacy about a cannabis product line that it received consumer complaints about, leading to a lawsuit against the delta-8 THC company Northland Vapor, which was accused of violating the state’s unique THC edibles law that was enacted that year.

Meanwhile, Rep. Morgan Griffith (R-VA)—who has sponsored legislation to require FDA to regulate hemp and its derivatives like CBD after the agency declined to enact its own rules—further pressed the FDA official at the hearing on Tuesday, questioning the idea that even local law enforcement could adequately navigate the issue given a lack of resources to distinguish federally legal hemp from illegal marijuana.

“Don’t they have to know what the chemical makeup is?” he said. “So now we’re going to have to deal with the forensic labs trying to determine if there is actually CBD or THC in the product?”

“Besides being understaffed themselves, local law enforcement has no authority to go in [to retailers] and start yanking products off the shelf, particularly if it’s a a retailer who’s multi-state,” he said.

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“Until they buy the product, have it tested in the forensic lab—which is way behind working on lots of other things, particularly in in the criminal setting—then they get it back,” he said. “And by that time, they’ve changed the brand name of the product, and there’s no way local law enforcement can do what you said that they ought to do. It can’t happen.”

Meanwhile, congressional lawmakers have been exploring legislative options to impose a general ban on hemp-derived cannabinoids such as delta-8 THC.

Rep. Mary Miller’s (R-IL) amendment to the 2024 Farm Bill, for example, was approved by a House committee in May and would remove cannabinoids that are “synthesized or manufactured outside of the plant” from the federal definition of legal hemp. The change is backed by prohibitionists as well as some marijuana companies, who’ve described the restriction as a fix to a “loophole” that was created under the 2018 Farm Bill that federally legalized hemp and its derivatives.

Anti-drug groups, law enforcement and some health organizations have called on Congress to embrace the ban, arguing that “trying to regulate semi-synthetic cannabinoids will not work.”

In addition to Miller’s amendment in the 2025 Farm Bill, the House Appropriations Committee in July approved a separate spending bill that contains a similar provision to prohibit cannabinoid products such as delta-8 THC and CBD containing any “quantifiable” amount of THC.

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Hemp-derived cannabinoids also came up in a recent federal appeals court decision in which judges ruled that cannabinoids derived from hemp, such as THC-O-acetate, indeed qualify as hemp and are legal under the 2018 Farm Bill. In making that ruling, the court rejected the Drug Enforcement Administration’s more restrictive interpretation of the law.

How to address hemp-derived cannabinoids has caused some fractures within the cannabis community, and in some cases marijuana businesses have found themselves on the same side as prohibitionists in pushing a derivatives ban.

In a letter to congressional leaders ahead of Miller’s amendment, the U.S. Cannabis Council (USCC) proposed specific language they wanted to see included that would place hemp-derived cannabinoids containing any amount of THC under the definition of federally illegal marijuana.

While they’ve focused on the need to address public safety concerns related to unregulated “intoxicating” cannabinoid products such as delta-8 THC, some hemp industry advocates say the effect of the proposed language could be a ban on virtually all non-intoxicating CBD products as well, as most on the market contain at least trace levels of THC, consistent with the Farm Bill definition of hemp that allows for up to 0.3 percent THC by dry weight.

In California, meanwhile, Gov. Gavin Newsom (D) is also attempting to rein in the proliferation of products that contain intoxicating hemp-derived cannabinoids. While many support the aims of the proposal, some stakeholders contend it could ultimately limit access to federally legal CBD products.

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