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Some Things Never Change: COVID-19’s Impact on CBD (or Lack Thereof)

Hemp production, unlike much of the farming industry, has not declined due to COVID-19.  Meanwhile, certain CBD companies have wasted no time in making unsubstantiated claims related to COVID-19.  In turn, FDA and FTC enforcement has ramped up.

As the pandemic rages on, the CBD industry continues to grow as it did before the crisis, and regulatory agencies are becoming … Continue Reading

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Hemp production, unlike much of the farming industry, has not declined due to COVID-19.  Meanwhile, certain CBD companies have wasted no time in making unsubstantiated claims related to COVID-19.  In turn, FDA and FTC enforcement has ramped up.

As the pandemic rages on, the CBD industry continues to grow as it did before the crisis, and regulatory agencies are becoming increasingly active in overseeing the burgeoning industry.  Over the course of the past eight weeks of quarantine, hemp production has remained relatively constant, and certain CBD companies have attempted to leverage the current crisis in their marketing materials, to their peril.  In response, the Federal Trade Commission (FTC) and Food & Drug Administration (FDA) continue to aggressively monitor the marketplace and have taken swift enforcement action against those making false or unsubstantiated claims.

Hemp Production Remains Relatively Unscathed, Supported by Demand and Federal Programs

With the legalization of Hemp by the 2018 Farm Bill,[1] hemp production has remained steady relative to the rest of the farming world.[2]  Hemp production buoyance may be attributed to strong demand, which has enabled some hemp businesses to do better in this crisis than they did before the pandemic.[3]  Hemp growers, like other farmers, are further supported by federal programs.  The USDA recently announced the $19 billion Coronavirus Food Assistance Program (CFAP), which provides $16 billion aimed at aiding farmers.  Its funding is sourced from the CARES Act as well as the Credit Commodity Corporation.  Separately, hemp farmers are also able to obtain assistance enabled by the $2 trillion CARES Act from the Small Business Administration.

CBD Enforcement Activity

With a new crisis, comes new opportunity – but where opportunity is exploited, enforcement actions follow.  Within the past two months, both the FTC and FDA have taken steps to demonstrate to the public their increasing aggressiveness to clamp down on illegally marketed and unsubstantiated products.

Statements from FDA

Confusion over COVID-19 and the best means to containing the outbreak still seem very much up in the air.  However, enforcement, as it relates to CBD products and their claimed medicinal effects on COVID-19, is becoming increasingly apparent to industry watchers.  First, in early March 2020, FDA Commissioner Stephen Hahn issued a statement updating the public on the agency’s work.  In his statement, Commissioner Hahn noted that the FDA was working on: 1) continuing to educate the public on the risks of CBD; 2) seeking reliable data on the safety and benefits of CBD, including opening the public docket on the matter; and 3) monitoring the marketplace for the sale and marketing of unapproved drugs.  To that end, the FDA followed up with another piece of public guidance in late April, informing the public that there are currently no approved treatments for COVID-19.  The April guidance does not explicitly call out CBD as ineffective or otherwise, but it does demonstrate that the FDA is actively monitoring the market for fraudulent products.

Joint Warning Letters

Just like other entities seeking to capitalize on COVID-19 fears, NeuroXPF, a CBD company based in Nevada, has marketed its products to treat or prevent COVID-19 on its social media accounts and website.  NeuroXPF claimed, among other things, that its product could both prevent, by boosting the user’s immune system, and help fight off a COVID-19 infection.   In response, on March 31, 2020 the FDA and FTC issued a joint warning letter asserting that NeuroXPF’s products are: 1) unapproved drugs sold in violation of the Food, Drug, and Cosmetic Act (FD&C Act); 2) that the products are misbranded; and 3) that the claims are in violation of the Federal Trade Commission Act (FTC Act) because they are unsubstantiated (i.e., not backed by competent and reliable scientific evidence).  Notably, the letter sets a 48-hour deadline for the company to respond with the actions it has taken to address the FTC and FDA’s concerns.  The response deadline is striking because the response time has been significantly reduced — previous warning letters typically allotted 15 days for responses.[4]

Similarly, on May 7, 2020, the FTC and FDA also issued a warning letter containing similar allegations to AgroTerra.  Specifically, AgroTerra claimed that its CBD products can help relieve stress, and therefore can help boost the user’s immune system to fight off COVID-19.  The FTC and FDA also noted that AgroTerra is an Amazon Associate Program participant and as such, it can earn commissions by promoting the sale of certain products “with claims on your website representing or implying that the products can mitigate, prevent, treat, diagnose, or cure COVID-19 in people.”  Much like in their earlier letter to NeuroXPF, the FTC and FDA are requiring prompt attention – Agroterra has only 48 hours to respond.

Federal Court Litigation

Lastly, the FTC has filed a complaint against Marc Ching, also doing business as Whole Leaf Organics, in April of 2020 for making false claims.  Notably, this marks the FTC’s first lawsuit involving COVID-19 related claims.  It also further showcases the severity of inaction to lesser forms of enforcement.  Whole Leaf Organics was previously cited by the FTC in late 2019 for making unsubstantiated claims that its products could treat cancer.  The defendant never took action in response to the FTC’s warnings and later began marketing his product as a possible treatment for COVID-19.  Consequently, the FTC has filed a complaint alleging that Mr. Ching has made false and unsubstantiated claims that his product treats or otherwise prevents COVID-19 and cancer.

The foregoing shows the perils faced by companies who are unaware of or willingly ignore regulatory guidance.  Seyfarth Shaw’s Cannabis and Products Liability Groups will continue to monitor and report on market developments.  Seyfarth is uniquely positioned to assist companies navigate the complex regulatory regimes established by the FTC and FDA.

[1] https://www.blunttruthlaw.com/2019/02/c-is-for/.

[2] https://subscriber.politicopro.com/article/2020/04/hemp-farmers-going-full-force-despite-pandemic-1923242 (subscription required).

[3] https://www.politico.com/newsletters/morning-agriculture/2020/04/27/usda-seen-as-mia-as-farmers-dumped-crops-787153.

[4] See, e.g., https://www.blunttruthlaw.com/2019/11/fda-and-ftc-issue-joint-warning-letter-for-cbd-products-and-senator-schumer-applies-pressure-on-fda-to-regulate-cbd/.

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Growing

How to Identify Pests in Your Cannabis Grow

Experienced and novice cannabis growers alike understand that pests can ruin a crop, no matter how well watered, fed, or tended. One of the keys to making sure that your plants grow into healthy, robust, and consumable cannabis is to keep a close eye o…

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Experienced and novice cannabis growers alike understand that pests can ruin a crop, no matter how well watered, fed, or tended. One of the keys to making sure that your plants grow into healthy, robust, and consumable cannabis is to keep a close eye on any pests that might infiltrate your grow, then take the appropriate steps to eradicate them without ruining your garden. Not only will it help keep the plants alive, thriving plants have more energy to produce trichomes and terpenes, making for better bud

Let’s take a look at some common pests found on cannabis plants, how to identify them, and lastly, get rid of them for good. With just a little maintenance and vigilance, your cannabis garden can be pest-free.

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Common Pests Found on Cannabis Plants

According to the Smithsonian Institution, there are likely more unclassified insects in the world than classified, and the running guess is somewhere between 2 million and 30 million. Thus, this is by no means a definitive list of bugs that feed on cannabis but should serve as a good starting point for most pest problems. 

Caterpillars

Before a caterpillar turns into a beautiful butterfly and flits away, it can be very hazardous to your cannabis plants. You know that book The Very Hungry Caterpillar? Turns out it’s a true story about how caterpillars eat everything in sight, including that tasty cannabis. Caterpillars can be very dangerous because they tend to go unnoticed, especially if they are a borer caterpillar, meaning they burrow into the plant and eat it from the inside out. But even caterpillars on the exterior will nosh away, potentially causing great damage to your plants. 

To figure out if caterpillars are ruining your plants, inspect the leaves weekly for holes from feeding, droppings on the leaves that look like tiny black specks, holes, and damage to the stems, and yellowing on upper leaves.

Natural enemies of caterpillars are wasps and praying mantises, and introducing those to the environment could make a difference. These options are typically easier for outdoor grows, but can also work indoors with some preparation. Other interventions include using a product like Bug Blaster spray or neem oil (which you can make at home).

Neem oil use has been controversial in some cannabis circles, as there is a belief among some that it may play a role in CHS (Cannabis Hyperemesis Syndrome), however, no definitive statements can be made without more research. The connection between neem oil and cannabis hyperemesis syndrome has yet to be fully explored or verified, but it’s still good to be aware and to be sure to closely follow usage directions.

Aphids

Even house plants have the occasional plague of aphids. Tiny and red, yellow, black, pale, green, or brown, these bugs can be easy to miss because they cling to the underside of leaves, reproduce quickly, and drain your plant of nutrients. Outdoor grows tend to fare a little better in the battle against aphids since natural predators are present, but indoor plants can be decimated quickly by these teensy pests. Not only do they siphon nutrients away from the plant, they leave a sweet substance called “honeydew” that attracts other insects and turns the leaves black and moldy

Aphids and their honeydew on a plant

The honeydew left behind from aphids leads to further damages to the plant by attracting even more pests. photo credit

Because that honeydew attracts other pests, if you begin to notice a lot of ants or ladybugs coming around your plants, it’s a pretty good sign that you’re well into an aphid problem. Aphids can be hard to shake, but wasps and ladybugs are natural predators. Nonetheless, you should visually inspect the underside of plant leaves at least once a week. If introducing predators doesn’t ameliorate the problem, there are a couple of natural solutions to get rid of cannabis pests to try, like garlic or tomato leaf water. 

Spider Mites

Spider mites are like the supervillains of cannabis pests: uber reproductive, zombie-like in their ability to come back from what you thought was death, capable of spinning webs while eating everything in sight then completely disappearing before turning up again – they’re nearly impossible to spot and even harder to eradicate. Spotting spider mites is difficult because they are minuscule, but doing a daily inspection of both sides of your plant leaves could help to prevent a massive infestation.

Signs of spider mites begins with speckles, then a browning or yellowing of leaves, and premature leaf death.

If any parts of your plant are covered in fine webbing, that’s a sure sign you’re in a bad spot. The best way to avoid mites is to stay vigilant with your leaf inspections. If you do notice signs of mites, try introducing a fan into the environment. Strong air currents make it difficult for mites to breed. Spider mites also prefer temperatures of 60-80 degrees, so experimenting with temperature might also slow an infestation down. Since mites are likely to come back, consider a spray like Azamax or Spinosad to get rid of them for good (again, be sure to follow use directions carefully).

Fungus Gnats

Fungus gnats are just as hungry as caterpillars, but their gourmet meal is from the stem and roots of your plants and not the leaves. Beginning at the topsoil level, both larvae and adults will munch their way down into the root system, badly impact plant drainage, and compromise the structural stability of your plants. However, they’re nearly impossible to spot because they are dark in color, as is soil.

Fungus Gnats

Although fungus gnats are small, the damage they leave behind is mighty. photo credit

Seeing swarms of gnats near the base of your plant is one sign you’ve got a fungus gnat problem. Other symptoms are stems that weaken and simply fall over, adult plants that start to droop, wilt, spot, or yellow, or plants that stop growing altogether. 

Fungus gnats love moist conditions, so keeping the top layer of soil dry is a smart preventative measure. Some other hacks to try include placing a cloth on top of the soil to prevent female gnats from laying eggs or laying a sticky pad near the plant’s base to stick larvae. You could also mix some peroxide and water and spray it around the area of gnat infestation. A common-sense tactic for an indoor grow is to put screens on the windows and the doors closed to keep gnats out. 

Why Pests and Bugs Are Attracted to Cannabis

Something to keep in mind about pests, in general, is that they love a monoculture or a space dedicated to growing only one crop. Researchers from the University of California Davis theorize that if an insect makes itself at home in that one crop, it has a large food supply, creating an all-you-can-eat kind of scenario for the pest, making it that much harder to eradicate. As you likely don’t want to introduce other plants into a cannabis garden (for a number of reasons), this issue will always exist to some degree when dealing with weed. 

This is why, as mentioned, another option is to introduce other beneficial insects. Not only do they prey on harmful pests, but they are also an excellent chemical-free pest control option. The bugs already want to be there, you’re just bringing them to the dinner table. 

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The Wrap Up

Identifying pests should be a regular ritual, just like watering and delivering nutrients to your plants. When you keep them pest-free, all that hard growing work will hopefully pay off in healthy and efficacious plants. Once you’ve harvested, you can move on to other fun challenges like doing a proper cure for your cannabis harvest, and how to store your cannabis stash


How do you deal with pests in your cannabis grow? Share your techniques in the comments!

Photo Credit: ilovegrowingmarijuana (license)

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Connecticut

Governor of Connecticut Pushes For Legalizing Adult-Use Cannabis In Budget Address

Connecticut’s Governor Ned Lamont proposed legalizing recreational cannabis in his budget address this week.

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Connecticut’s Governor Ned Lamont proposed legalizing recreational cannabis in his budget address this week.

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News

South Dakota Governor Delays Implementation of Medical Marijuana Initiative

It seems that Governor Kristi Noem isn’t quite done derailing voter-approved cannabis initiatives.

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It seems that Governor Kristi Noem isn’t quite done derailing voter-approved cannabis initiatives.

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