On July 27, the U.S. House of Representatives held an oversight hearing about the continued lack of Food and Drug Administration (FDA) regulation of the hemp-derived products market, which emerged after the 2018 Farm Bill codified hemp and its derivatives as distinct from the cannabis plant, removing them from regulation as a controlled substance.

In a separate action, a bicameral Request for Information (RFI) was released seeking detailed input about how these products should be regulated and how the ongoing lack of regulation has created uncertainty for producers and consumers, hampering the growth of an agricultural market.

The House Oversight Committee Subcommittee on Health and Financial Services held a hearing entitled “Hemp in the Modern World: The Yearslong Wait for FDA Action.” Committee members shared their frustration with five years of inaction by the FDA and the agency’s insistence that its existing authority to regulate food and dietary supplements are insufficient to address this market.

Several members voiced concerns that the lack of FDA regulation has allowed unscrupulous manufacturers to offer hemp-derived products with insufficient testing, inaccurate labels, package them inappropriately to attract minors and market them under false or misleading claims. The FDA and Federal Trade Commission have undertaken enforcement actions under existing authorities on products that infringe on trademarks, target children or were marketed with inappropriate medical claims.

However, hemp industry representatives are urging the FDA to act through regulation and used the hearing to ask Congress to compel them to do so under existing authorities.

The industry and all stakeholders now have a process by which they can give Congress feedback on a pathway to regulation. The House Energy and Commerce Committee and Senate Committee on Health Education Labor and Pensions, both with FDA oversight responsibility, released a Request for Information (RFI) with the purpose of “assessing the potential for a regulatory pathway for hemp-derived CBD products that prioritizes consumer safety and provides certainty to the U.S. market.” The RFI includes 29 questions and is expected to be the precursor information gathering approach ahead of more congressional hearings and potential introduction of new legislation to provide a more certain pathway to market.

Several bills have been introduced at the federal level already, including from a bipartisan group of senators that recently re-introduced a bill from last Congress that would compel the FDA to regulate under existing food and dietary supplement authority. Similar legislation has been introduced in the House as well.

To fill the regulatory vacuum, many states are implementing rules within their borders, including in Kentucky, where state legislators worked with consumer and producer groups to pass a law that maintains access to the full product range for adult use, while ensuring consumer protection.

Meanwhile, the 2018 Farm Bill is in need of reauthorization or extension by the end of the year, and hemp industry stakeholders will remain engaged to maintain hemp’s legal status, while seeking action in support of regulation that is outside the Agriculture Committee’s jurisdiction.

Bose Public Affairs Group is actively engaged in state and federal regulatory and legislative efforts to establish a more certain pathway to market for hemp-derived products.