Thursday, April 26, 2018
The title of this post is the title of this notable and timely new paper authored by Paul Larkin now available via SSRN. Here is its abstract:
Contemporary American society has decided that, whatever may be the benefits and harms of liberalizing marijuana use by adults, we should continue to outlaw the sale of recreational-use marijuana to children and adolescents. Even the states that permit recreational marijuana use under state law draw the line between adults and minors. Unfortunately, some companies pay only lip service to that line. The ability to develop products that closely resemble cookies, brownies, candies, and other substances that are attractive to children and adolescents — albeit, for different reasons — poses the risk that minors — some accidentally, some intentionally — will consume marijuana edibles found around the home or elsewhere. Any use of marijuana by children and long-term use of marijuana by adolescents poses health risks avoidable through federal prohibition or regulation of edibles.
To avoid the danger to their health and safety, the Justice Department and the FDA should take steps to prevent adulterated and mislabeled edibles from harming the public. Even if the Justice Department decides not to challenge the state medical or recreational use programs, the FDA should consider treating such edibles as adulterated foods under the FDCA — taking whatever steps are available to prevent the sale of any such products altogether — or to allow sales to go forward only under strictly regulated conditions. Doing so would help to reduce the danger that edibles pose to the health and safety of children and adolescents without materially interfering in state decisions on how to regulate the distribution of medical-use marijuana or the recreational use of that drug by adults.