8 Things: The Legal Status of CBD Products

8 Things: The Legal Status of CBD Products

  1. The first step in legalizing hemp, and therefore CBD, came with the passage of the 2014 Farm Bill. The 2014 Farm Bill drew a distinction between hemp and marijuana by defining industrial hemp as "the plant Cannabis sativa L.and any such part of such plant … with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent …"
  2. Because the primary goal of the 2014 Farm Bill was to generate hemp research and protect its cultivation, it did not expressly address the processing of hemp or the manufacture, distribution and sale of products made from hemp. Also, the 2014 Farm Bill did not modify the Controlled Substances Act to exclude from Schedule I either hemp or products containing THC derived from hemp. This led to confusion about the legality of industrial hemp products under federal law.
  3. On December 20, 2018, President Donald Trump signed the Agricultural Improvement Act of 2018, which is more commonly known as the "2018 Farm Bill." The bill represents a drastic transformation in federal hemp policy.
  4. The 2018 Farm Bill fills in the gaps left by the 2014 Farm Bill and clarifies that hemp and hemp products are legal. Passed by a wide bipartisan majority (386-47 in the House and 87-13 in the Senate), the legislation is a huge 641-page document in which just a few provisions concerning hemp are buried.
  5. The 2018 Farm Bill defines hemp more broadly than the 2014 Farm Bill defined "industrial hemp" thus eliminating any question that both the plants and products derived from the plants are legal, so long as the THC concentration does not exceed 0.3 percent. The 2018 Farm Bill provides that "the term 'hemp' means the plant Cannabis sativa L.and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." Any cannabis plant or product that contains more than 0.3 percent THC is still considered marijuana under federal law. 
  6. The 2018 Farm Bill does not remove all barriers to the production and sale of CBD products made from hemp. On the same day that the law became effective, the U.S. Food and Drug Administration (FDA) issued a statement as a reminder that it continues to have the authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug and Cosmetic Act and that it will treat those products as it does any other FDA-regulated product. 
  7. The FDA has also cautioned that marketing hemp-derived CBD or THC products as or in dietary supplements is unlawful because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of clinical investigations before they were marketed as foods or dietary supplements. The FDA tempers that warning by noting that it is only likely to initiate an enforcement action if CBD products are marketed with therapeutic claims or if they pose a threat to public health. 
  8. Serious momentum has started to create a legal pathway for the sale of CBD in dietary supplements and food. Dietary supplement companies interested in these types of products should begin preparing arguments on why CBD should be included in supplements to take advantage of the current spotlight.

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