Since enactment of the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), confusion has run rampant over when and where hemp or hemp produced cannabidiol (CBD) can legally be used. Animal food and feed are no exception. Developments at the U.S. Food and Drug Administration (FDA), as well as the actions taken by the Association of Animal Feed Control Officials (AAFCO), should be of particular interest to animal feed and pet food manufacturers interested in expanding into the so-called green rush.  Industry participants should take notice of these changes and evaluate the impact they have on their businesses.
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Today, the U.S. Food and Drug Administration held a meeting to discuss its regulatory approach to products that contain cannabis and cannabis-derived compounds, including cannabidiol (CBD). The public hearing was intended to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling and sale of products containing cannabis and cannabis-derived compounds. Along with holding the public meeting, FDA is accepting written comments through a docket on those topics until July 1, 2019. 
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The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently issued an industry circular which makes clear that cannabidiol (CBD), a product derived from hemp, is not permitted in alcohol beverages.

TTB generally consults with the U.S. Food and Drug Administration (FDA) when establishing whether an ingredient for use in an alcoholic beverage is safe.

Today, the Colorado Supreme Court unanimously held that Colorado’s Lawful Off-Duty Activities Statute does not protect employees from discharge for using medical marijuana away from work.  In a highly anticipated decision, Coats v Dish Network, LLC, No. 13SC394, the Colorado Supreme Court ruled that the plain language of the statute that protects employees engaging in “lawful off-duty activities,” does not cover medical marijuana use, which is illegal under federal law.

The employee who filed the lawsuit, Brandon Coats, was a quadriplegic working in Dish Network’s call center as a customer service representative.  Coats had a state-issued medical marijuana license to treat muscle spasms.  He alleged that he used marijuana at home during non-working hours and was never high at work.  Dish discharged Coats after he tested positive for THC, the active ingredient in marijuana, in a random drug test, in violation of Dish’s zero-tolerance drug policy.  He argued that under the lawful off-duty activities statute, Dish was not permitted to discharge him for using medical marijuana during nonworking hours and off company premises.

In a straight-forward and succinct opinion, the Colorado Supreme Court focused solely on the language of the lawful off-duty activities statute to decide that “lawful” refers only to activities that are lawful under both state and federal law.  Justice Allison Eid declared “Coats’ use of medical marijuana was unlawful under federal law and thus not protected by section 24-34-402.5,” rejecting Coats’s and others’ arguments that the term “lawful” refers only to Colorado law.  The court declined to address arguments about the underlying purpose of the statute, the medical need for individuals like Coats to use marijuana, and whether Colorado’s medical marijuana amendment made its use “lawful” or merely decriminalized under state law.  The Supreme Court even declined to address one of the two questions it posed when granting certiorari: whether the amendment to Colorado’s constitution authorizing medical marijuana conferred a “right” to its use.
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