A considerable paradox exists in U.S. food policy. Although the federal government has named food safety as a top priority, an entire pocket of the food industry remains largely unregulated by, or at least largely under the radar of, most federal agencies. That pocket is marijuana-infused food.
The term “marijuana-infused food” may spark memories of brownies from days past, but, today, marijuana food is a robust industry. Now manufacturers make everything from marijuana beverages to candies and mints. In fact, significant portions of state-legal marijuana are consumed as food rather than by inhalation. Thus, marijuana-infused food is a legitimate, thriving, and growing sector of the food industry.
As such, some degree of regulation is inevitable. Any food, regardless of whether it contains marijuana, poses public health risks if poorly prepared, mislabeled, or made with unsafe substances.
But the difference between marijuana food and other products is that marijuana remains a federally illegal substance. And, for the most part, states have historically relied on federal law, federal agencies, and federal funding to help govern food safety. So, as states continue to legalize marijuana, they may also have to regulate in areas where they have traditionally relied on federal funding or expertise.
Is Marijuana Food Safety a Federal Enforcement Priority?
In 2013, Deputy Attorney General James Cole issued a memorandum, e.g., the 2013 Cole Memo, stating the U.S. Department of Justice’s (DOJ) updated policy on marijuana enforcement. The 2013 Cole Memo lists eight priority enforcement areas and suggests that DOJ will leave marijuana enforcement to states so long as states adequately regulate and enforce DOJ’s eight listed priorities to the extent necessary to ensure public safety.
The eight priorities encompass obvious public safety risks such as preventing distribution to minors, drugged driving, and violence. At first glance, the list of priorities seems comprehensive. But the 2013 Cole Memo does not mention food labeling, food testing, or any kind of food safety regulation.
Failing to mention food safety seems like an odd oversight for several reasons. First, marijuana food is a significant part of the marijuana industry. Second, federal agencies have announced food safety as a priority, and the U.S. Food and Drug Administration (FDA) has begun implementing the Food Safety Modernization Act (FSMA), the most comprehensive food safety law to date. Finally, DOJ announced that it was bringing criminal charges against the Jensen brothers for their cantaloupe farm’s role in the 2011 Listeria outbreak just one month after issuing the 2013 Cole Memo. This suggests that DOJ is concerned about food safety and willing to engage in these types of issues. Yet it did not list food safety as a priority for marijuana enforcement.
Does it Matter if Marijuana Food Safety is a Federal Enforcement Priority?
The 2013 Cole memo’s failure to mention food safety does not mean that there will be no liability for marijuana food contamination. First and foremost, all manufacturers are required to produce safe food. Second, the memo clearly emphasizes that states must ensure public safety, and food safety certainly falls within that realm. Finally, the memo is just guidance; it does not have the effect of law. And some question the strength of the guidance because U.S. prosecutors may interpret and follow the memo at their discretion.
Nevertheless, the federal government clearly announced its intention to step back and let states take control of marijuana enforcement. DOJ clearly set forth what it considers top public safety priorities in relation to marijuana, but it did so without mention of food safety.
Can States Adequately Regulate Marijuana Food on Their Own?
Just because the federal government did not specifically tell states to regulate marijuana-infused food does not mean that states will not do so. Indeed, last year Colorado created the first comprehensive set of marijuana food regulations, and it has already implemented the first stages.
So the interesting question is not whether states will regulate marijuana food. If Colorado is any indication, states will come up with some type of regulatory scheme. The interesting question is whether states are equipped to regulate food safety entirely on their own.
States are not new to food safety. They have long been responsible for food safety regulations such as facility inspections and food-handling codes. But they have never been responsible for the kind of farm-to-fork regulations such as those Colorado recently passed.
Indeed, the average consumer may underestimate just how much federal law is behind food products. From food processing to food labeling, federal agencies, or at least federal funding, play a pivotal role in food safety enforcement.
Does Marijuana Food Safety Affect Federal Marijuana Policy?
Marijuana food safety might put a hitch in DOJ’s plan to leave the bulk of marijuana enforcement to states. DOJ expects states to create “sufficiently robust” regulation and enforcement schemes. But is it realistic to expect states to create sufficiently robust regulatory and enforcement schemes for marijuana food?
For now, it seems the answer may be partly related to convoluted legal issues such as preemption and federal jurisdiction. But the answer also heavily depends upon Colorado’s successes or failures. While Colorado anticipates adjustments and changes to its marijuana food regulations, it has already taken full responsibility for regulating marijuana food within the state. And, if Colorado does successfully regulate marijuana food from farm to fork with no help from the federal government, it will be a significant accomplishment and perhaps even a framework for other states with legal marijuana food industries.
