The federal Food and Drug Administration (FDA) partnered with Hawaii law enforcement in a “unique” surveillance operation that recently led to the arrests of two people associated with a cannabis business who are suspected of violating state drug laws.
FDA’s Office of Regulatory Affairs (ORA) touted the federal-state partnership and resulting enforcement action in a social media post last week. It said that FDA staff and the Hawaii Department of Agriculture “surveilled retail shops in Hawaii’s Chinatown, including a CBD dispensary.”
“As a result, law enforcement & [the state Department of Health] embargoed CBD products and arrested two people suspected of promoting harmful and/or detrimental drugs,” FDA said.
This May #FDAORA staff & @hdoapio surveilled retail shops in Hawaii’s Chinatown, including a #CBD dispensary. As a result, law enforcement & @HawaiiDOH embargoed CBD products and arrested two people suspected of promoting harmful and/or detrimental drugs. https://t.co/M5lFnPLCXW
— FDA_ORA (@FDA_ORA) June 29, 2022
A federal agency collaborating with state partners on drug enforcement isn’t particularly novel on its face, but FDA’s involvement did raise some eyebrows. When it comes to CBD, the agency is more commonly known to take enforcement actions like sending warning letters to companies that make misleading medical claims about their products, for example.
“This type of operation is unique and is an example of our efforts to expand partnership opportunities with the states in areas of mutual public health and law enforcement priorities,” an FDA spokesperson told Marijuana Moment on Friday. “The FDA is committed to partnering with states and have entered into a formal partnership agreement with the state of Hawai’i to coordinate efforts in support of our shared public health missions.”
The spokesperson referenced a March 2022 Memoranda of Understanding (MOU) that the agency entered into with Hawaii’s health and agriculture departments, as well as the University of Hawaii.
“An initial goal is to support regulatory oversight of imported commodities for which each Partner has statutory responsibilities,” FDA said. “The intent is to minimize duplicative efforts and further mutual reliance.”
What remains unclear is the specific nature of the alleged crime that FDA and Hawaii officials were investigating that led to the arrests and seizure of products at two locations of Pinky’s Hempire. The business’s website stresses that it “only sells hemp-derived CBD products” containing up to 0.3 percent THC, which would be legal and the federal and state level.
However, the individuals were charged with “Promoting a Harmful Drug in the second degree” and “Promoting a Detrimental Drug in the second degree” before being released pending an ongoing investigation, according to a news release from the state health department. The former charge is a state felony and the latter is a misdemeanor.
“The Department of Public Safety Sheriffs and NED teamed up with the Department of Health to crack down on businesses that engage in alleged illegal activity,” Hawaii Public Safety Department Deputy Director for Law Enforcement Jordan Lowe said. “We want to make sure businesses fully understand the consequences they face when they knowingly disregard the law.”
While possession of up to three grams of marijuana is decriminalized in Hawaii, punishable by a $130 fine, without the possibility of incarceration, distribution remains criminalized. But the news release doesn’t specify whether the cannabis products being sold at the businesses were tested and found to contain more THC than allowable under federal and state statute. Another possibility would be that the businesses were involved in other controlled substances, but neither FDA nor Hawaii officials commented on those details.
Sarah Chase of the Council for Federal Cannabis Regulation told Marijuana Moment in an email that Hawaii is “rather unique in relation to products”
“Each island has distinctly different rules,” she said. “This is because they are isolated islands and there is always a fear of inter-island contamination due to substances, invasive species, etc, etc. So, Hawaii tends to be under a greater lens of scrutiny from a public health standpoint because of the nature of its basic geographic makeup.”
A Senate-approved bill to legalize marijuana in Hawaii died last year when it failed to proceed past a House committee by a key deadline.
Gov. David Ige (D) was reluctant to let even the modest decriminalization bill advance, describing it as “a very tough call” and saying he went “back and forth” on the issue before deciding to allow it to be enacted. Any further reform are expected to face an uphill battle with the governor, who’s expressed concerns about implementing policies that he sees as conflicting with federal law.
But as a general matter, the federal government has taken a hands-off approach to state cannabis policies. FDA didn’t make the arrests, nor does it appear that any federal charges have been levied against the suspects in the recent case, but the agency’s participation in a surveillance capacity, and the fact that it touted its involvement in a tweet after the fact, marks a departure from the norm nonetheless.
Again, FDA enforcement action has historically been moderate when it comes to cannabis.
In May, for example, the agency simply sent warning letters to four cannabis companies for allegedly making unsanctioned claims about the medical benefits of CBD products they’ve marketed for animals.
At a congressional hearing that month, FDA Commissioner Robert Califf recognized that his agency has not taken meaningful steps to regulate CBD products over the years since hemp was legalized, but he also put the onus on Congress to empower the agency to more effectively facilitate rulemaking.
FDA also recently warned consumers about marijuana-infused copycat food products that resemble popular brands and the risks of accidentally ingesting THC, particularly for children.
The agency separately issued its first set of warnings to companies over the allegedly illegal sale of products containing the increasingly popular cannabinoid delta-8 THC.
It sent five warning letters to companies that are marketing products with the intoxicating compound and making what the agency says are unsanctioned claims about their therapeutic potential.
In May, a top Republican on a key congressional committee also called on leadership to schedule a hearing to hold FDA accountable for its lack of action to set regulations for CBD and delta-8 THC products.