Pennsylvania and New Jersey Cannabis: Hemp Gummies

Authored By:  William F. McDevitt, Esq.

As I read the Philadelphia Inquirer this week, a large ad jumped out at me:

The three-column ad had a lot to say about “hemp oil,” which the ad claims contains no THC, is used by professional athletes and is the subject of a U.S. patent. Calling the toll-free number gives Pennsylvania (and presumably New Jersey and Delaware) residents access to 90-day supplies of 5 milligrams (per gummy) of “hemp extract” that will return the consumer’s body to balance and homeostasis.

Reading all of this while looking at the picture of an overflowing bowls of hemp gummies was awfully tempting.

But of course, the “hemp oil” or cannabidiol (CBD) remains illegal under state law. Even if the CBD is locally sourced and sold through a licensed dispensary, edibles are not legal in Pennsylvania. Edibles are presently restricted to underage patients New Jersey. Moreover, Pennsylvania’s Medical Marijuana Act (MMA) strictly prohibits advertising or packaging that appeal to children. Candy-shaped CBD probably runs afoul of the spirit of the MMA.

CBD remains illegal under federal law as well. While former Attorney General Jeff Sessions, a cannabis and hemp opponent, is leaving office, the Drug Enforcement Administration (DEA) continues to prosecute purveyors of CBD. On October 2, 2108, the DEA seized approximately 5,002 vials of CBD oil, having an estimated retail value of $490,000, from Curan North America, LLC located in Panama City, Florida. The factual basis for the seizure is not presently known, but it demonstrates that CBD remains a target for federal law enforcement.

The Food and Drug Administration (FDA) also considers CBD to be an unlawful additive and prohibits its introduction into foods. The purpose of regulation is to prevent some of the broad-ranging types of statements that appear in the Philadelphia Inquirer advertisement. Although the ad bore a disclaimer indicating that the statements have not been evaluated by the FDA and the “product is not intended to diagnose, treat or prevent any disease,” the text of the ad states that “hemp extract” may help “aching joints, sore muscles, cramping, leg and foot discomfort, restlessness, stress and sleep problems.”

There is clinical support for the use of the CBD-based drug Epidolex in the treatment of certain types of seizures. But the research on the specific formula used in Epidolex does not support the use of a non-descript “hemp extract” for other ailments. There are dozens of cannabinoid compounds available in hemp plants. The amount of any particular cannabinoid can vary by producer, method of extraction and type of product. The Inquirer ad doesn’t tell consumers whether their “hemp extract’ is full spectrum (containing many different cannabinoid compounds) or an isolate (containing a limited number or a single compound). It doesn’t say how the CBD was extracted or where it was grown. It doesn’t even disclose the name of the company offering to sell a 90-day supply of gummies with a 90-day money-back guarantee plus $10 for trying the product.

“Hemp extract” ads such as this are harmful to the cannabis industry because they misappropriate the language that medical researchers and specialist CBD producers use. This anonymous flimflam is designed solely to sell monthly deliveries of gummies. One might even question whether those candies even contain CBD.

The CBD industry is growing by leaps and bounds but still struggles for acceptance from the medical community. CBD will be fully embraced only when consumers consistently receive accurate medical information, quality products and tailored treatments. Both law enforcement and the legitimate CBD community should be concerned about these exploitative efforts that can potentially harm the reputation of these treatments.

William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at [email protected].