Marijuana Plus Alcohol? Not Likely Under Current Law


This blog has previously written about how alcohol is regulated and discussed how that model could interface with marijuana regulation. We have also wondered if a 28th Amendment for marijuana should be considered if marijuana legalization advocates truly want to have legal parity with alcohol regulation.

With more states considering marijuana commercialization and industries developing around it, there has been some reports of companies discussing marijuana infused alcohol products being sold. Recently, it was reported that the creator of Blue Moon beer was launching a beer infused with THC. This beer apparently will not contain alcohol.

In the United States there are substantial legal and regulatory hurdles to overcome for any company to sell an alcohol product with marijuana in it. Most obviously, marijuana is an illegal controlled substance banned for sale by the federal government. Although some states have changed their state laws, the fact remains that marijuana is a Schedule One prohibited drug under the federal Controlled Substances Act.

A whole host of federal and state laws would be implicated in any attempt to introduce a product with both alcohol and marijuana in the United States. But perhaps a trip to the recent alcohol regulatory past is illustrative of how the federal government would likely respond.

Recall that in 2010 the Alcohol and Tobacco Tax and Trade Bureau (TTB) pulled the approval of alcohol energy drinks from four companies because the U.S. Food and Drug Administration (FDA) deemed their caffeinated alcohol beverage products “adulterated” under the Federal Food, Drug and Cosmetic Act.  State Attorneys General also were very active in investigating companies producing these products.

While TTB regulates the labeling of alcohol beverages, it is FDA’s responsibility to evaluate the safety of ingredients added to alcohol beverages. TTB’s action followed FDA’s year-long evaluation of alcohol beverage products containing added caffeine and their subsequent determination that the caffeine added to their alcohol malt beverages is an “unsafe food additive” and that further action, including seizure of their products, is possible under federal law.  As a result, caffeinated malt beverages were pulled from the marketplace.

If caffeine, which is legal and has a wide body of research, is going to raise FDA and TTB concerns when added to alcohol, how is marijuana, illegal and relatively unstudied, going to satisfy the FDA standard of Generally Recognized as Safe (GRAS) for ingredients to be added to alcohol? The science for marijuana may not be available to permit FDA to make this GRAS determination at this point.

Moreover, some of the states that have already passed state legalization laws have made it clear that there can be no marijuana infused alcohol. Oregon has banned this practice and California recently clarified that an alcohol product cannot have marijuana in it. Of course, the federal and state regulations on adding marijuana or marijuana compounds to alcohol assume there is alcohol in the product.   If no alcohol, then the alcohol regulations may not apply to production. For example, some companies are taking the alcohol out of their wine to avoid the ban.

In 2000, the TTB issued guidance on the usage of hemp. In addition to rigorous product testing the TTB made clear that finished product cannot contain a controlled substance. I imagine the principles of that guidance will continue to control the TTB approach in this area.

I do not know whether full scale commercial legalization will ever be enacted in the United States, but the debate on whether marijuana, if commercialized, will be regulated like food, like a prescription drug, like an over the counter drug, like tobacco, like beer, like grain alcohol, etc. are all important policy decisions that will need to be made before any specific type of alcohol + marijuana products ever make it to the US market.

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