Does the FDA Regulate CBD? Could they be doing a better job?

Does the FDA Regulate CBD? Could they be doing a better job?

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The FDA is now late on making some sort of statement about CBD. In their normal procedures, if anyone or anything makes a claim about a particular product, a medical claim about a particular product has to have some justification for it in the opinion of the FDA, the FDA is a really interesting example of what libertarian economists call regulatory capture. The reason that the FDA was created was that pharmaceutical companies (drug companies) were in fact selling products that had either no medical value, or were actually poisonous, literally poisonous. There needed to be some sort of regulation.

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The idea that the states could take care of it individually, or tort law, (we will sue you if you kill us) would do it. It simply was not accomplishing its objective. So there’s a part of the progressive move in the early part of the 20th century. Whatever you may think of progressive movements today are very different than back then because they were dealing with very basic questions. I think it’s really important to observe again what is the phenomenon of regulatory capture. So you start off with a real problem and you start off with really good intentions about how to address that problem. And you pass laws that are demonstrably necessary because they are outlawing things that are clearly harmful. What could possibly go wrong?

Well, what happened? The pharmaceutical industry recognizes this process, that is, the process of putting everything through an FDA procedure, letting the government decide what is and is not medicine, which seemed to be an absolutely perfect idea. Human beings are involved, so you’re going to have problems. Mistakes are going to happen. “This is isn’t perfect” is not a reason simply to not try to minimize harm. But you really have to be aware of what the potential unintended consequences are. I would say the one wall that always works is the law of unintended consequences.

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As the industry grew up and the FDA’s role was established in this thing it was accepted that every new drug needed to go through the FDA. Let me give you the most famous example of this. You have a problem that a lot of women have during pregnancy: nausea. So a drug that would help women overcome nausea during pregnancy is certainly a worthwhile product. They came up with a product that, in fact, did exactly that. The product is sometimes called thalidomide. If you go and look up thalidomide, and you’ll probably have to look it up because it’s from our distant past. Thalidomide did keep women from being nauseous during pregnancy. Unfortunately, it caused genetic defects that the children were sometimes born without arms and legs or with simply hands growing out on their shoulders.

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In England in particular, where thalidomide was widely used, was an enormous tragedy. One person on the staff of the FDA insisted, no, we will have more testing done in the U.S. before we approve thalidomide in this context. By the time the test could begin, the effects of the children being born with these terrible deformities was manifest. The FDA saved the American people from this terrible tragedy. Bravo. This was used to prove the importance of the role of the FDA. The FDA is now being used to suppress cannabis… Drumroll, please. The punchline of this joke is that cannabis alleviates the nausea of pregnant women. So this oppression of cannabis created demand for thalidomide, which then established the authority of the FDA and enabled it to ban cannabis medicine. That’s all, folks.

Richard Cowan is co-founder of, and is a former National Director of NORML.

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