Is CBD Legal Now? How the Farm Bill Changed The Landscape for Hemp
March 06, 2019 | Geoffrey Marshall
By Sonja Soderlund for CBD Hacker
“It is incumbent upon consumers to look into the products that they are purchasing and ask questions about the product. Has the cannabinoid content been verified by an independent testing lab? Has the product been tested for other contaminants such as microbes and pesticides?” - Heather Despres
Much ink has been spilled about the implications of the 2018 Farm Bill for the hemp industry. But what does it mean for consumers?
You may have noticed that the 2018 Farm Bill got a lot more media attention than your typical farm bill. Since its signing, the hemp industry has been abuzz with excitement – and for good reason. But is CBD legal now? While the bill radically changed the legal landscape of hemp in the US, many questions remain.
Much ink has already been spilled about the implications of the legislation for the hemp industry. But what about the CBD consumer? If you’re wondering how the Farm Bill might affect you, you’ve come to the right place.
We’ll look at how the new legal landscape affects your access to your favorite CBD oil products, and we’ll demystify the language of the legislation in the process.
WHAT DOES A FARM BILL HAVE TO DO WITH CBD?
In short, the 2018 Farm Bill legalized industrial hemp and hemp-derived products at the federal level, removing them from the purview of the DEA. Since hemp is no longer a controlled substance, the USDA will regulate the crop as it does other agricultural commodities.
The law defined “agricultural hemp” as cannabis strains that contain less than 0.3% THC. Additionally, the Farm Bill explicitly legalized the “extracts, cannabinoids, and derivatives” of hemp. This is important because the 2014 Farm Bill had left some ambiguity on this point. That lack of clarity was a major source of contention between the DEA and the CBD industry.
Hemp-derived CBD differs from the hemp fiber used for clothing or plastic in that it will be regulated by the FDA, but there is no longer any confusion about whether or not it is a federally legal substance.
THE FARM BILL AND STATE REGULATION
So, at the federal level, the Farm Bill has brought about much-needed clarity about the legal status of CBD.
However, if you’re reading this in a state that has taken a less welcoming stance to CBD, you may have noticed that the doors haven’t just swung wide open for the CBD industry since December.
Depending on the state in question, this may be due to state interpretation of FDA guidelines for CBD (more on that later). But the Farm Bill also gives states the freedom to make their own decisions about how to regulate hemp.
According to Heather Despres of Americans for Safe Access, the Farm Bill “does not make too much of a difference for people living in restrictive states, as those states can still impose restrictions on industrial hemp and therefore CBD products.”
At least for the present, this creates a bit of a patchwork situation for consumers. If you’re traveling across the country with a bottle of CBD in your glove box, you may find yourself in states with very different stances on CBD.
Of course, the Farm Bill does reduce the possibility of local law enforcement treating your CBD as a controlled substance. But will the passing of the Farm Bill pressure states to relax their own positions on CBD?
WILL THE FARM BILL MAKE A DIFFERENCE IN MORE RESTRICTIVE STATES?
We talked to Jonathan Miller, general counsel for the US Hemp Roundtable (and counsel to many companies in the hemp industry). He is a leading advocate for the legalization of hemp and lobbied for its inclusion in both the 2014 and 2018 Farm Bill.
According to Miller, the Farm Bill will have an impact at the state level. “Many states have wording in their statutes that lends credence to the idea that if hemp is legal federally it’s also legal at the state level. So there is a bit more comfort in those states.”
And as to the question of states that explicitly prohibit CBD: “There is no state law right now – in any state – that explicitly prohibits the sale of hemp-derived CBD.” Miller does acknowledge that there are, however, a significant number of states where authorities and law enforcement interpret the statutes as restricting CBD.
Are you a CBD consumer living in a state that chooses to regulate CBD more strictly? Be assured that the work of hemp lobbyists is far from done.
As Miller explains, “We’re trying to make sure those laws are clarified and that it’s crystal clear that you can purchase hemp-derived CBD in those states.”
And states like Alabama have already relaxed their stances on CBD in response to federal legalization. “You see a lot of states moving in that direction,” says Miller, “but it’s going to take a little time and we’ve got a lot of work to do.”
IS CBD LEGAL IN EDIBLES, FOOD AND BEVERAGES?
So if CBD is federally legal, whence the confusion around CBD food products?
The FDA is the federal authority that regulates how CBD can be marketed and sold. Currently, they are in the process of working out what those guidelines will look like.
As Despres explains, “The FDA still prohibits CBD for use as a dietary supplement or an additive in food and drink products. This means that the FDA can still send warning letters to producers of CBD products if they determine that they are in violation of the Food, Drug, and Cosmetic Act.”
Hence the confusion at the state level.
States like New York, Maine, and Ohio are looking to the FDA for cues on how to regulate CBD post-Farm Bill. And they are interpreting current FDA guidelines to mean that CBD cannot be added to food products.
But if you love your CBD edibles, now is not the time to panic. FDA commissioner Scott Gottlieb has speculatedthat new regulations may allow products with low concentrations of CBD to be categorized as food. On the downside, Gottlieb says that the process of finalizing regulations could take two years – or more.
(Ed. Note: Gottlieb announced his resignation from the FDA just before this article was published. It’s unclear whether his departure will impact the timeline for CBD regulations.)
In the meantime, the upshot for consumers is that you may notice a lot of flux in what is allowed on store shelves and restaurant menus. This is a part of the messy process of working out rules that will apply to the entire country.
But while it’s confusing and annoying as a consumer, it is very important that the FDA gets this right. A well-thought-out regulatory framework could save a lot of trouble and confusion at the state level.
POST FARM BILL 2018: THE FUTURE OF QUALITY CONTROL
Now that CBD is federally legal, you may notice that the hemp industry isn’t waiting for the FDA (or individual states) to take the lead in quality-control of CBD products.
The US Hemp Authority, an initiative of the hemp industry, has recently launched a voluntary CBD certification program which will identify companies that have met high standards of safety and consistency.
And federal legalization will also make obtaining organic certification a lot easier for hemp farmers. This takes the burden of asking all the questions off of the consumer and places it onto federal regulators. It will take a while, but you will be able to buy certified organic CBD products much more easily in the future.
But in the meantime, Despres doesn’t want you to stop doing your homework. “It is incumbent upon consumers to look into the products that they are purchasing and ask questions about the product,” she said. “Has the cannabinoid content been verified by an independent testing lab? Has the product been tested for other contaminants such as microbes and pesticides?”
The Farm Bill has made CBD a federally legal commodity. But it’s still up to consumers to make sure they’re buying from trustworthy sources.