The FDA is going after anything seen as marketing to minors, and plenty of cannabis products could be caught in the crossfire.
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The FDA kicked off the new decade with a priority announcement. In response to a ballooning youth epidemic of Juul addiction, the FDA is poised to go after all Electronic Nicotine Delivery Systems (ENDS) and “other deemed products” in the tobacco market.
“In late 2017, FDA started to see a marked increase in complaints about ENDS products,” the statement says. “FDA initiated an investigation of these complaints, the majority of which pertained to minors’ access to and use of these products. This new information indicated an alarming increase in the use of ENDS products by middle and high school students.”
How does this impact the cannabis industry?
While the FDA’s statement makes no explicit reference to banning cannabis products, the cartridges, delivery systems, and advertising methods used for many cannabis products are very likely to come under the microscope —particularly in the e-commerce market.
A potential extension into cannabis looms
The FDA concludes the opening section of their announcement with this statement:
“Although this guidance does not address products that are not tobacco products, the outbreak of lung injuries associated with use of vaping products illustrates public health and safety concerns that may arise for products for which information related to product safety and health impact are lacking and affirms the importance of the premarket review process, as contemplated by the Tobacco Control Act, to scientifically evaluate products based on a public health standard.”
For cannabis companies, the concern should lie in the fact that ENDS products use the same electronic systems used by many cannabis oil pens and vapes. It’s no secret that manufacturers and distributors in the cannabis industry are crafting products that straddle the FDA’s legal grey line, and now it’s likely that any flavored products may come under fire. The FDA’s primary concern is reducing access to ENDS and e-cig cartridges that cater to minors, and this includes any e-liquid advertising resembling “kid-friendly food products.” It’s not hard to imagine flavored strains of THC vape and CBD pens with vibrant flavoring and packaging—even if they’re not explicitly targeting minors—being pulled under the FDA’s amorphous umbrella of banned delivery systems.
Considering that much of the evidence concerning the health benefits of CBD is anecdotal — outside of some early (though promising) clinical studies — there is plenty of precedent for the FDA to investigate the market more. Plus, fragmented state policies on cannabis products encourages action at the federal level, even if manufacturing and distribution in America primarily originate in marijuana safe-havens like California and Colorado.
Should the agency decide to expand its scope to include marijuana products, then manufacturers, advertisers, and retailers proffering such products to consumers online are very likely to come under the federal microscope.
And that may come sooner than people think.
The CDC released a report on January 14th citing that one-sixth of patients in 2019 who developed lung injuries from marijuana vaping purchased products from legal dispensaries. The CDC report exposes a problem with the sourcing of vaping products, particularly the cartridges.
In the pursuit of profit, many dispensaries may unknowingly source cartridges tainted with Vitamin E acetate or coconut oil, which is extremely dangerous to the lungs when inhaled. In an emerging, booming market like cannabis, supply chains can often be convoluted and subject to the vagaries of profit-seekers cutting corners to make a profit.
Improve age verification or suffer the consequences
One of the explicit plans put forth by the FDA’s announcement is stricter age verification, citing three target areas for manufacturers, e-commerce shops, and other retailers to implement:
Establishing or enhancing programs, such as mystery shopper programs, to monitor retailer compliance with age-verification and sales restrictions
Establishing and enforcing contractual penalties for contracted retailers that sell tobacco products to youth
- Using age-verification technology to better restrict access to the manufacturer’s website, such as through independent, third-party age- and identity-verification services that compare customer information against third-party data sources
All three guidelines apply to the cannabis industry. Even if it doesn’t explicitly reference marijuana, you can bet the FDA is fully aware of the similarities between the industries’ vape products.
The salient takeaway is that the FDA is cracking down primarily on sales to minors, and they are indicating that manufacturers and retailers are culpable for any sales to underage consumers. The onus falls on them to rectify the situation and get underage sales of vape products under control.
“What began as a relatively simple minimum age policy and guidelines for vape retailers to comply grew into the strict regulations we see today, parallel to growing underage use,” says AgeChecker, a company that provides FDA-compliant age-verification technology to online merchants. The firm has been anticipating declarations and studies like those recently emanating from the CDC and FDA and has detailed them extensively on its blog. “We expect more legal guidance for ENDS retailers,” the post says. “Until then, vape business are wise to stay abreast of current policies.”
Cannabis manufacturers and retailers (specifically e-commerce shops) would be prudent to take proactive measures now. Otherwise, they may face steeper fines and penalties, which are sure to rise with the tide of public outrage over the negative health effects of vaping. Taking careful measures to avert the ire of the federal government is always a smart idea, and could help cannabis retailers improve their public image — while bringing in more legitimate consumers in the process.