In a much anticipated move, the Senate passed the Agriculture Improvement Act of 2018, a.k.a. the Farm Bill on December 12, 2018. Contained in the bill are provisions for the cultivation of hemp and the development and sales of products derived from it.  

For the first time since the 1937 Marijuana Tax Act, the federal government is acknowledging that hemp is not the same as marijuana. Although it is from the same family of plants, cannabis, industrial hemp has less than .3% of the psychoactive cannabinoid THC and has a multitude of uses in textile manufacturing.  

The move has been lauded as another big gain in cannabis legislation reform. Let’s take a closer look at the details.  

Does the Farm Bill Affect CBD Scheduling? 

Yes and no.   

As we reported in November, the DEA has been forced to review their decision to classify all compounds derived from cannabis, including non-psychoactive compounds such as cannabidiol, as schedule I. This was thanks to the FDA approving the first CBD based drug, Eipidiolex® earlier this year.  

Unfortunately, they provided only an extremely narrow approval of cannabinoids being reclassified, as only FDA approved pharmaceuticals based will qualify for rescheduling. In addition, the DEA (per the Controlled Substances act of 1970) does not distinguish between cannabis, and the subset of low THC strains known as hemp.  

However, the 2018 Farm Bill does explicitly address the scheduling of hemp and products made from it. You will need to go to Section 12619 find the text that addresses this issue:  

Hemp is removed from the definition of “marihuana,” and THC found in hemp is excluded from the definition of a controlled substance. 

What this means is that CBD is still a controlled substance, UNLESS it is produced from hemp. AND, THC is NOT a controlled substance if it does come from hemp. Let’s break that down: 

If you happen to buy a CBD product that is made from refining another strain of cannabis (any strain with more than .3% of THC) then your CBD oil is not legal and is still considered a schedule 1 drug according to federal law.  

On the other hand, a full spectrum CBD oil is still legal, even with trace amounts of THC, as long as the source of that oil was hemp.  

What About State Laws Concerning Hemp and CBD?  

Just as with alcohol, hemp products are going to include regulations. State or federal licensing will be required to grow hemp. And, states are encouraged to track hemp products from “seed to sale” which means CBD oil derived from hemp may soon see additional state regulations that are more stringent than the federal guidelines.   

It remains to be seen how states will interpret those guidelines and it could spark a bit of a legal dilemma at the state level. However, even a state that has become notorious for wasting tax payer money enforcing a ban on CBD, such as Alabama, are already backing down.  

Alabama’s Attorney General Steve Marshall has declared that CBD derived from legally produced hemp is now legal to sell and possess in the state. This despite doubling down on vows to prosecute CBD sales just last month along with a high profile arrest of shop owner Harry Autry in November for allegedly selling CBD products in his store.

The FDA and CBD Oil     

If you think the battle is over regarding CBD oil at the federal level, just hold your horses. The FDA has now thrown their hat in the ring to be the next federal agency to gain jurisdiction over CBD products in the marketplace.  

FDA Commissioner Scott Gottlieb issued a harshly worded statement on the heels of the bill being signed into law to let the public know that the Farm Bill did not exempt the FDA from being able to regulate products containing CBD or THC regardless of their source.  

In fact, in perhaps the ultimate irony, Gottlieb argued that it is precisely because of the recent FDA approval of Epidiolex®, the active ingredient of which is cannabidiol, that the FDA retains enforcement rights over products containing CBD (or THC). This, argues the commissioner, is regardless of the source of those compounds. It is almost as if the agency is saying, “Now that we know this compound has medical benefits, we need to make sure it is hard to get your hands on it. SIGH!  

In addition, the statement reaffirms the agency’s stance that marketing CBD as a food supplement is also a problem, particularly if product labeling promises cures or attempts to diagnose specific conditions. On the other hand, the statement does recognize that products derived from hemp seeds are exempt from the concerns of products made from hemp more broadly. Notably, such products contain little or no CBD in them. 

Stay Tuned

Although putting a significant damper on celebrations among cannabis advocates, the FDA decision may yet be the subject of legal challenges given that it conflicts with the spirit of the Farm Bill as well as growing scientific evidence that CBD is safe, well tolerated and poses no public health risk. (See for example the 2018 report by the World Health Organization.)  

Still, the 2018 Farm Bill is big news for the already skyrocketing CBD health supplement market. Industry experts expect to see an explosion in the cannabis based product sector, and thanks to the 2018 Farm Bill, CBD may well lead the way in 2019.  

While it does not address all of the conflicting laws, it clearly a move in the right direction. We hope that it will open the door to more research on the various health benefits of CBD oil as well.  

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