Cannabis and Non-Compete Clauses
Colleagues:
What does the cannabis schedule change have in common with regulation of non-compete clauses? Both are examples of how the federal government issues regulations. A regulatory agency publishes a proposed rule in the Federal Register. A 120-day public comment period follows. The agency then publishes its final rule.
The FTC followed this process for non-compete clauses. The time for public comment has passed. The FTC has now published the final rule. Business groups unhappy with the decision are now going to court.
The FDA is about to initiate a similar process to change the controlled drug schedule designation for cannabis products. Once the White House OMB has approved, the FDA will publish a proposed rule in the Federal Register, and then a 120-day public comment period will open. Whatever you feel about cannabis, that open comment period will be your time to speak up and submit your comments. Do know that this is not a trivial exercise. When the FDA wrote up its final rule, it quoted several physicians who had written in with gripping and emotional stories. The same opportunity is about to happen with the cannabis regulations.
Here is another way to say this. Where individual physicians have any potential impact on policy is during the 120-day comment period. If you agree or do not agree with what the FDA is proposing, then the comment period is when to speak up. Keep in mind that some people are saying that moving cannabis from Schedule 1 to Schedule 3 is a first step towards getting cannabis off the schedule altogether. Others are saying this is not enough, and that cannabis should be completely off the schedule now. Others are saying cannabis is dangerous to the public when users act irresponsibly, and therefore cannabis should remain Schedule 1 and should not be moved at all.
I am writing about this in Pulse to bring this to everyone’s attention. This is now of current interest. Now is a suitable time to take stock of this latest move by the FDA and prepare one’s remarks for inclusion when the comment period opens. Now is also a suitable time to look back on how the FTC non-compete rule was adopted. For those who are screaming today about the non-compete rule now, I say that the time for screaming is not once a Rule is final, but rather during the comment period before a rule is finalized. The same is true for the proposed FDA rule that will be coming up very soon.
All the best,
Jerome C. Cohen, MD
MSSNY President
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