By Sarah Lee Gossett Parrish, Cannabis Lawyer

Contrary to popular belief, technically under the 2014 Farm Bill, CBD products are federally illegal under the Controlled Substances Act (CSA)—a little recognized fact and a status that, in practice, is seldom enforced now. In fact, the Drug Enforcement Agency (DEA) has consistently taken the position that commercial activity concerning industrial hemp and CBD derived from it is impermissible under the 2014 Farm Bill. However, the 2018 Farm Bill should render the DEA’s current position untenable.  

A brief background is necessary to fully understand the current status of CBD products under federal law and what the 2018 Farm Bill will do to change this status.

All CBD products contain THC, but those derived from the industrial hemp plant (a cannabis cousin to marijuana), generally contain less than 0.03%. In practice, most states turn a blind eye to such products; thus, the proliferation of CBD shops nationwide. With the anticipated passage by Congress of the 2018 Farm Bill, CBD will be legal under the CSA, which currently defines marijuana as “all parts of the plant Cannabis sativa L – and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin,” thus including marijuana and industrial hemp within the definition, as both plants fall under the umbrella of “cannabis.” However, there are new protections for hemp-derived CBD in the 800-page 2018 Farm Bill, which Senate Majority Leader, Senator Mitch McConnell (R-KY) symbolically signed with a pen made from hemp.

It is appropriate to include such protections for hemp-derived CBD in the 2018 Farm Bill, given that industrial hemp is an agricultural commodity. At least three early American presidents grew it, and it was widely cultivated as a cash crop until the 1920s, when the federal government made all forms of marijuana illegal. Under the 2014 Farm Bill, Congress authorized state pilot programs to study the cultivation of and commercial market for industrial hemp as a viable agricultural crop. Hence, perhaps, consumers’ confusion about whether or not CBD currently is legal.

Under the championing of Senate Majority Leader Mitch McConnell, industrial hemp legalization was placed in the 2018 Farm Bill. The final language repeals Section 7606 of the Agricultural Act within the 2014 Farm Bill, which mandates that hemp be grown under the direction of a state agricultural pilot program or institution of higher education. It also removes industrial hemp from the CSA’s definition of “marijuana” and from Schedule I.

The 2018 Farm Bill should end the debate over the legal status of industrial hemp (and, therefore, CBD derived from it) under the CSA. All products made from industrial hemp, including CBD oil, will be legal under the CSA if they contain no more than 0.3 % THC.

Even with the 2018 Farm Bill’s passage, however, a second question will linger—is CBD legal under the Federal Food, Drug, and Cosmetic Act? But that discussion is for another blog post!

While there certainly is some scientific and anecdotal evidence of CBD’s effect on anxiety, pain, inflammation, nausea and seizures, and documentation of its value in fighting the opioid crisis, the current gray area of law concerning whether CBD is legal under federal law has discouraged research on its health benefits, and its technically illegal status has prevented federal research dollars from being designated to study its health benefits. Upon passage of the 2018 Farm Bill, this should change, and we should see studies concerning the health benefits of CBD proliferate.

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