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FDA Approves CBD-Containing Drug - Will the DEA Finally Step Up?

On Monday, the U.S. Food and Drug Administration (FDA) approved Epidiolex, a drug containing Cannabidiol (CBD). CBD is one of the 80 active chemicals found in the marijuana plant, but unlike the more commonly known cannabinoid chemical Tetrahydrocannabinol (THC), CBD does not produce a “high”.


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Justin Gover, chief executive officer of GW Pharmaceuticals, the UK-based biopharmaceutical company that makes Epidiolex, stated the FDA assessed Epidiolex as having a low to negative potential for abuse.

The FDA approved Epidiolex as a prescription drug to be used to treat two severe epileptic conditions, Lennox-Gastaut syndrome and Dravet syndrome. Epidiolex is the first drug the FDA has approved that contains a substance derived from marijuana, and it is also the first drug approved by the FDA to be used to treat patients with Dravet syndrome.

The FDA’s approval of the drug is just one step toward getting Epidiolex on the market and available to doctors to prescribe as a treatment option. Moreover, the ball is in the Drug Enforcement Agency’s (DEA) court. As the Controlled Substances Act (CSA) currently stands, CBD is still a Schedule I substance, which classifies CBD as having no medicinal uses. The FDA can make recommendations to the DEA about substances subjected to scheduling under the CSA, but the DEA is the entity with the power to reschedule CBD.

In the recent case Hemp Industries Associations v. U.S. DEA, the DEA expressed in their brief that they do not wish to control cannabinoids, but rather only those cannabinoids derived from the flowers and resins of a cannabis plant above .3% THC. Further, the DEA issued a directive to federal agencies this past May clarifying that the presence of cannabinoids alone, in any product or derivative, does not automatically qualify the substance as controlled under the CSA. The problem that arises is trying to determine where the CBD was derived from after the CBD has already been derived and processed, which is an arguably impossible task.

So for now, we wait in anticipation for the DEA to commence proceedings to determine how to amend the scheduling of CBD under the CSA in a way that will allow for Epidiolex to be prescribed by health care providers and dispensed by pharmaceutical companies appropriately and legally.

Even though the use of CBD for medicine has the support of the FDA, the methods of extracting CBD and the marketing of CBD products will likely become the subjects of high scrutiny. FDA Commissioner Scott Gottlieb stated:

“We’ll continue to support rigorous scientific research on the potential medical uses of marijuana-derived products and work with product developers who are interested in bringing patients safe and effective, high quality products. But, at the same time, we are prepared to take action when we see the illegal marketing of CBD-containing products with serious, unproven medical claims. Marketing unapproved products, with uncertain dosages and formulations can keep patients from accessing appropriate, recognized therapies to treat serious and even fatal diseases”.

As CBD gains recognition as a medicine, the producers and manufacturers will be subject to strict regulatory policies, and noncompliance will not be tolerated. CBD will increasingly become even more heavily regulated on both the state and federal levels. Attorney Charles Feldmann has worked extensively with a variety of state agencies focused on enforcement, licensing, federal risk mitigation, and compliance. For five years Mr. Feldmann worked under the United States Drug Enforcement Division. Using his unique and rare expertise, Mr. Feldmann assists his clients in establishing strict regulatory compliance protocols at both the state and federal levels. Mr. Feldmann is a trusted advisor for marijuana businesses. If you are in need of an attorney who can help you successfully navigate both the federal and state CBD rules and regulations, contact Cantafio & Song PLLC today.

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