On Thursday, December 20, President Trump signed into law HR 2, the 2018 Agriculture Improvement Act. This law, which is informally known as the Farm Bill, transforms the regulatory status of hemp in the US.
So, why is this such a big deal for the hemp and CBD industries?
What Does the Farm Bill Have to Do with CBD?
The Farm Bill amends the Agricultural Marketing Act of 1946, redefining the legal definition of the word “hemp” to include hemp-derived products, including cannabinoids like CBD. Here’s the new definition, with emphasis added:
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.
It also amends the Controlled Substances Act of 1970 to clarify that the term “marihuana” does not include this new definition of hemp.
In the past, the DEA had argued that all cannabis extracts, whether derived from hemp or high-THC strains, were Schedule 1 substances. But this law clearly states that hemp and hemp derivatives like CBD are not controlled substances. And this means that the DEA can no longer claim any jurisdiction over hemp-derived CBD.
But that doesn’t mean that hemp and CBD won’t be regulated. The difference is that the authority to make rules about these crops and products will shift to the USDA, the FDA, and the states.
Who Will Regulate Hemp and Hemp-Derived CBD?
In short, the USDA will have authority over hemp as an agricultural commodity. Any states that wish to make their own rules regarding hemp farming will be able to submit regulatory plans to the agency for approval, but the agency will have the ultimate authority in this area.
And for hemp products that are produced as food additives, supplements, or medications, the FDA will be in charge, just as they are for other types of products.
When it comes to CBD, it’s not yet clear how the FDA will proceed. But after the Farm Bill signing ceremony, FDA Commissioner Scott Gottlieb released a statement on the topic. The statement asserted the agency’s authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act.
“This allows the FDA to continue enforcing the law to protect patients and the public while also providing potential regulatory pathways for products containing cannabis and cannabis-derived compounds,” said Gottlieb.
Here are a few of the major CBD-related takeaways from the statement:
- The FDA “will warn consumers and take enforcement actions” when they believe consumers are at risk.
- Any product that makes a claim of therapeutic benefit must be approved by the FDA for that purpose before it can be introduced to interstate commerce.
- Because both CBD and THC are active ingredients in FDA-approved drugs, the agency’s position is that it is illegal to introduce foods or supplements containing CBD or THC into interstate commerce, even if they are derived from hemp.
- The FDA is taking new steps to evaluate whether to use its authority to issue a regulation allowing the use of CBD and/or THC in a food or dietary supplement.
And while the FDA is still considering what to do about hemp-derived cannabinoids, the agency has added several hemp-derived food ingredients to the “generally recognized as safe,” or GRAS, list. These are hulled hemp seeds, hemp seed protein and hemp seed oil.
State Regulatory Plans for Hemp and CBD
The Farm Bill allows individual states or localities to enact their own regulations concerning hemp.
To understand how this might work, just think of the way that alcohol is regulated in the US. There are still dry counties in some states, which prohibit any alcohol sales, and some states prohibit the sale of certain types of alcoholic beverages in supermarkets, or at certain times of day.
So, federal hemp legalization may end up looking very different, depending upon which state you live in.
Many states will likely embrace hemp production. Kentucky, which led the nation in hemp production until the mid 20th century, has already submitted its hemp oversight proposal to the USDA for approval.
And while the bill does allow states to make their own rules, the good news is that the 2018 Farm Bill says that states will not be able to prohibit the transportation or shipment of hemp or hemp products through their land. While that makes it sound like open season on traveling with CBD, consumers should still exercise caution. The TSA currently has its own regulations that prohibit traveling with cannabis products in both carry on and checked luggage.
What Does the Farm Bill Mean for CBD Consumers?
For example, the new law prompted Alabama Attorney General Steve Marshall to update his position on the legal status of CBD. “CBD derived from industrial hemp, with a THC concentration of not more than .3 percent, can be legally produced, sold, and possessed in the State of Alabama,” said Marshall.
Alabama had previously taken a hardline stance on CBD sales. The state only allowed people to possess it for the treatment of seizure disorders, and had cracked down on retailers. With this change, consumers won’t have to worry about breaking the law when they purchase hemp-derived CBD products.
