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The Legal Status of Cannabis for Animals

Cannabis and CBD have helped millions of animals across the US

In recent years, the use of cannabis in veterinary medicine has gone from obscure concept to a mainstream issue. This explosion of interest in the use of cannabis and CBD for animals has led to the development of a multi-million dollar industry creating cannabis-based products for pets. As so often happens, however, public demand is a few steps ahead of the medical and legal establishment.

As with humans, cannabis for pets can be broadly divided into two categories: hemp-based CBD and true medical cannabis (marijuana) products. Both categories face their own individual legal challenges while the veterinary profession has its own internal battle on how to address the growing interest and body of research to support the use of medical cannabis for animals. As a means of clearing the air, following is a summary of the challenges faced by pet owners and veterinarians regarding the use of cannabis for animals.

Hemp is defined as cannabis that naturally produces less than 0.3% THC. For years, hemp companies have been producing CBD rich extracts and marketing them for animals and humans. Although the federal legality of these products has been a matter of debate, the 2018 Farm Bill signed into law last year officially took hemp and CBD from hemp off of the federal controlled substances list. Immediately in response, the FDA announced that CBD is considered a “drug” and is thus subject to pharmaceutical regulations. In practicality, this means hemp companies have to be very careful in the way they label and advertise their products in order to prevent the FDA from restricting their sales. This is why you often see terms like “phytocannabinoids rich extract” and “hemp extract” on products rather than the term “CBD.”

While hemp-based CBD products are now considered slightly more legal, veterinary use and/or recommendations of these products is a different story. As of February 2019, the Veterinary Medical Board in California still has no official policy on hemp products. They do however, continue to tell veterinarians they are barred from discussing, recommending, or selling hemp products.

Medical Cannabis in California

Over the past several years, there has been a surge in interest in medical cannabis and CBD for pets. The California Veterinary Medical Board released a statement in early 2017 reminding veterinarians that state law does not allow for veterinary recommendation of cannabis and if vets recommend or discuss the use of cannabis for their patients, they put their medical licenses at risk. In response, veterinarians and others concerned for patient safety promoted a change in state law. AB 2215 was passed and signed into law in late 2018, allowing veterinarians to “discuss” the use of cannabis with pet owners.

Presently, the Veterinary Medical Board is debating the definition of “discuss” and it is fair to say there is not a consensus. While some board members see the need for veterinarians to be directly involved with keeping their patients safe through providing appropriate medical guidance, others are openly opposed to the use of cannabis in veterinary medicine.

While the Veterinary Medical Board debates the definition of the word “discuss” (they have until January 1, 2020 to come to a consensus), the effort to allow veterinary recommendation of cannabis continues to move forward. SB 627 authored by Senator Cathleen Galgiani was introduced to the legislature in February 2019 and if passed, will “unleash” veterinarians in California and help safeguard pets in need of medicine.

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For the time being, the use of cannabis for animals is in a state of flux. As a pet owner, you can buy CBD containing products for pets over the counter and, if your state has a cannabis law, you can purchase human or animal labeled products containing THC and give them to your pet. Unfortunately, your veterinarian may be reticent to talk with you about it or give you guidance out of concern for his/her medical license. With some luck and persistence however, California will soon become the first state in the USA to allow veterinarians to “recommend” medical cannabis for animals. And as the saying goes, “As goes California, so goes the nation.”


Gary Richter, a Project CBD contributing writer, is an Oakland-based veterinarian. His forthcoming articles for projectcbd.org will contain practical information on using cannabis to treat medical conditions in pets.

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The Federal Legality of CBD Smokable Products

cbd hemp cigar cigarette

In the last few weeks, we have received a growing number of inquiries pertaining to the legality of smokable products infused with cannabidiol derived from industrial hemp (“CBD Smokables”), including vape pens and pre-rolled hemp flower joints. This post provides a brief overview of the current legal status of these products.

As we have discussed on several occasions (here and here), the U.S. Food and Drug Administration (“FDA”) has yet to promulgate clear guidelines on CBD-infused products. While we know the FDA deems the sale and use of CBD in food and dietary supplements unlawful, the agency has yet to address its sale and use in tobacco products.

Indeed, the FDA has the authority to regulate the sale, manufacture, and marketing of tobacco products under the 2009 Family Smoking Prevention and Tobacco Control Act (“TCA”). The TCA defines “tobacco product” as a “product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product.”

In 2016, the FDA expanded its regulatory authority to all products meeting the TCA’s statutory definition of a tobacco product, such as e-cigarettes, cigars, pipes and waterpipes.

However, the various statements published on the FDA’s website (here and here) seem to suggest that the agency currently refuses to interpret “tobacco products” so broadly as to include products free of nicotine or tobacco. Accordingly, it seems unlikely that CBD Smokables devoid of these substances would be considered “tobacco products.”

Although the federal agency is not likely to regulate most CBD Smokables as tobacco products at the moment, it could potentially regulate them as a drug under the Food, Drug and Cosmetic Act (“FDCA”).

Under the FDCA, a drug is defined as “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease” or “intended to affect the structure or any function of the body . . . .” Accordingly, the agency’s jurisdiction is triggered by the intended use of the product. Generally, intended use is determined on the basis of claims made in labeling, advertising and other promotion of the product. Therefore, any health claim made about CBD-infused products, including CBD Smokables, will be treated by the FDA as a drug.

Drugs are tightly regulated by the FDA and are subject to pre-market approval. Yet, as of the date of this post, the FDA has only approved CBD as a pharmaceutical drug in the treatment of epilepsy (Epidiolex). Accordingly, any health claim made about any CBD Smokable would lead the FDA to treat the product as a drug, and thus, would require the distributor to submit their product to the agency for pre-market approval before they can begin selling it in interstate commerce.

Until the agency makes a final determination and issues guidelines for CBD Smokables, no distributor will technically comply with current FDA rules. However, based on the FDA’s recent statements and past enforcement actions, said distributors can mitigate the risk of FDA enforcement by avoiding medical claims all together.

For additional information on CBD Smokables, please contact our team.

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USDA and FDA Shed Light on Hemp and CBD

hemp cbd fda agriculture

On February 27, 2019 both the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”) provided new insights and guidance related to their proposed regulatory processes for hemp under the 2018 Farm Bill. I will summarize these agency statements below, and give some context for what hemp and CBD businesses can expect in the near term.

USDA

The USDA posted a webpage titled Hemp Production Program (“Program Update”). The 2018 Farm Bill directs the USDA to create regulations and guidance to implement a program for hemp cultivation in the US. The USDA has started to gather information to begin the process of rulemaking. The USDA will use this information to “formulate regulations that will include specific details for both federally regulated hemp production and a process for the submission of State, and Indian tribal plans to USDA.”

The Program Update states that the USDA’s goal is to have regulations in place by fall of 2019 to accommodate the 2020 planting season. The Program Update also indicates that cultivators should operate under the 2014 Farm Bill for the 2019 planting season. The 2018 Farm Bill extension of the 2014 authority expires 12 months after USDA has established the plan and regulations required under the 2018 Farm Bill. The USDA will hold a listening session on hemp production in the form of a webinar on March 13, 2019, at a to-be-determined time.

FDA

FDA Commissioner Dr. Scott Gottleib provided testimony to the House Committee on Appropriations on the FDA’s status of operations. Kyle Yaeger of Marijuana Moment, reported on the testimony moments after Gottleib stood down. According to Gottleib, the FDA understands that “Congress wants there to be a pathway for CBD to be available.” Gottleib qualified this by saying that CBD access is not a straightforward issue because CBD has already been investigated and approved as a drug, Epiodiolex, which generally means CBD cannot be added to food. This is where things get interesting.

Gottleib stated that CBD products could be available “in a high concentration, pure formulation as a pharmaceutical product” and “at a different concentration as a food product or dietary supplement.” This only adds to the rumors that the FDA may distinguish hemp extracts by those that include the full array of cannabinoids found in the plant (“full spectrum extracts”) and those that have isolated CBD alone (“CBD isolate”). At this point, that distinction is just conjecture, but Gottleib’s recent statement is an indicator that FDA is at the very least considering this distinction. For more information on this and the Red Yeast Rice case that has lead to the widespread industry speculation, please see the following:

Gottleib went on to say that “We believe it does have therapeutic value and has been demonstrated [. . .] but I will tell you this is not a straightforward process. There’s not a good proxy for us doing this through regulation.” Gottleib is right. CBD doesn’t fit in nicely to the FDA’s general framework. That is one of the reasons why we write so frequently on CBD and the FDA.

Gottleib also noted that the FDA will hold a public hearing on hemp and CBD in April. That hearing is sure to draw a TON of interest, so stay tuned for that.


These recent updates from the FDA and USDA are not groundbreaking, but they do provide some new information, including when and how the public can provide input into the critical rulemaking process. We will continue to monitor FDA, USDA and other federal agencies as they figure out how to regulate legal hemp.

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West Coast Hemp CBD After the Farm Bill: The Video

In case you missed it, or would like to revisit some of the information, below is the recording from last week’s lunch hour webinar on west coast hemp CBD after the Farm Bill.

Stay tuned for future posts answering some of the questions we weren’t able to get to during the webinar.

Until then, enjoy!

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Hemp Testing

Altitude Consulting is not only a hemp testing laboratory, but an organization trusted to consult within the industry. Home growers and commercial farms around the world recognize that EPA based methodologies assure the most accurate and consistent data. Give us a call or bring us a hemp potency, residual solvent or terpene profile sample and see the difference.

Altitude Consulting
Denver’s most effective cannabis testing company.