Veterinary Medication, Pet Merchandise And Hashish | Fox Rothschild LLP

As a veterinarian, are you ready to navigate the conversation when a pet owner comes to you with questions or concerns about the safety of hemp or CBD infused animal products?

Practicing veterinarians are regulated by several state and federal agencies, including the FDA, DEA, and their respective state veterinary and pharmacy agencies. Given the complexity of the federal and state level laws regulating cannabis products, as well as the independence that state agencies have in controlling the intricacies of the practice, it can be difficult for veterinarians to know what to say, or whether to tell pet owners, or not can say anything at all.

Meanwhile, the market for cannabis pet products is exploding. Pet owners have many purchase options and questions about the safety, dosage, and effectiveness of these new products. While research into the safety and effectiveness of pet cannabis products is ongoing, more robust, peer-reviewed scientific evidence is needed to support flagging claims that such products prevent, relieve, treat, or cure a condition in animals. Under current FDA guidelines and regulations, such products would be considered unauthorized use of veterinary medicinal products and veterinarians who administer, prescribe, or recommend such products, including CBD products, would be subject to disciplinary action.

While it may be clear that veterinarians cannot prescribe CBD pet products to customers, are there any restrictions on what veterinarians can do with their customers? In a crowded market, pet owners should turn to their vets for advice. A survey conducted by the Veterinary Information Network confirmed this. 63% of veterinarians surveyed said customers ask questions about cannabis pet products on a monthly, weekly, or daily basis.

While such discussions could possibly be protected by the first amendment (see below), some states have had guidelines (through regulation) that specifically allow or prohibit such discussions.

State Veterinary Boards

For example, as of September 27, 2018, California prohibited the State Veterinary Medical Board from disciplining, refusing, revoking, or suspending a veterinarian’s license to discuss the use of cannabis pet products with pet owners. To receive the protection of this legislation there must be a relationship between the vet and the client and the vet must document the discussion in the patient’s medical records. This documentation must include evidence that the veterinarian has discussed: the variability of cannabis products, there is no monitoring of product concentrations, and there is a lack of research and possible side effects that can occur in pets. It is important to remember that this only protects the discussion; Veterinarians are currently prohibited from dispensing, administering or recommending cannabis products.

Similarly, Michigan recently amended state public health law to allow licensed veterinarians to consult with a pet owner about the use of marijuana or industrial hemp on pets. As in California, Michigan’s update doesn’t cover any actions beyond the discussion phase. At the other end of the spectrum, however, New Hampshire prohibits veterinarians from discussing pet cannabis use with their customers. New Jersey and Pennsylvania veterinary authorities have not issued any published positions or guidelines.

Concerns about language regulation

Of additional concern is the potential impact of the regulation of professional language by state veterinary authorities. In general, professional conduct regulations that are part of a state’s licensing system are acceptable. However, the regulation of professional language is much more complex. Currently, regulations of medical practice, which incidentally place a burden on language, are to some extent respected and only subject to an intermediate examination if they are questioned within the framework of theories of free expression. The Court’s statement in the recent National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 1275 (2018) supports this concept. The question that remains, however, is whether the limitations on a veterinarian’s ability to discuss and recommend CBD pet products constitute a permissible regime of conduct or cross the line into unconstitutional regulation of professional language. It is possible to have more specific guidance soon. The well-known 5th Circuit Hines II case has been reversed and referred back to the District Court for a more thorough assessment of the concept of professional language versus behavior.

In the coming months, especially as the cannabis market continues to develop, it will be important to oversee the guidelines and state regulations of your state veterinary committee on this matter. It is likely that existing regulations, guidelines, and options for pet owners will continue to grow and evolve with the cannabis pet product market.

To learn more about the regulation of hemp, hemp derivatives and CBD in animal products, click here.

Click here to learn more about pet cannabis product labeling.

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