The cannabinoid known as cannabidiol, or CBD, is all the rage among the health faddists nowadays, and it clearly does appear to have legitimate medical applications, even amid much-unsubstantiated hype about its salubrious properties. Part of this hype stems from the fact that CBD is unburdened of the stigma that attaches to its “high”-inducing sibling, THC. But part of this hype also comes from the fact that, in 2015, the federal government gave a green light to industrial hemp pilot programs in states around the nation. Because the government defined hemp as the cannabis sativa plant with less than 0.3 percent THC, companies started selling CBD from hemp, though they still were hampered with legal ambiguities around the compound’s legality.
When President Donald Trump signed the 2018 U.S. Farm Bill into law in late December, it was supposed to clear up the situation — and, in some respects, it did.
But confusion is still widespread about CBD. On one hand, there’s widespread messaging that CBD is simply “legal” now, while on the other hand, we are also getting misleading headlines like that in Rolling Stone on March 5, saying, “Why Isn’t CBD Legal Yet?”
In fact, there are two key questions to keep in mind when it comes to CBD.
First Question: Hemp-Derived CBD or Marijuana-Derived CBD?
While the 2018 Farm Bill removed hemp from the Controlled Substances List, the actual text of the law does not mention the CBD cannabinoid by name. However, it says that “any… cannabinoids” taken from the hemp plant — excluding THC — are removed from Schedule I of the Controlled Substances Act. This implicitly covers CBD.
Countless companies are using the fact that hemp-derived CBD has been removed from the Controlled Substances List to sell it nationwide. This means that if you’re purchasing CBD online, it’s almost certainly hemp-derived CBD. However, this hemp-derived CBD also likely hasn’t been tested and might not even contain CBD at all. There are currently no federal regulations for ensuring this CBD is labeled properly or safe for human consumption.
It also means that the CBD available for purchase online frequently is lacking the full range of cannabinoids and terpenes available from the marijuana plant, which are frequently present in the marijuana-derived CBD extracts sold in dispensaries. This phenomenon is called the “entourage effect,” and there is growing evidence that much of the news about CBD’s effectiveness is enhanced in the presence of THC.
There is also a catch to the statement that “CBD is legal.” Because THC and the THC-laden buds of the cannabis plant remain illegal, CBD’s legality is contingent on whether it is derived from such flowers or not. Although chemically identical, CBD derived from cannabis plants with less than 0.3 percent THC is not a scheduled substance, while CBD derived from high-THC strains is still illegal.
This speaks to the stigma that continues to surround THC and its much-maligned “high,” which persists as a kind of cultural hangover from the days of Reefer Madness, even amid the recent progress toward normalization of cannabis. It also speaks the distinction between “marijuana” and “hemp,” which is often derided as a semantic question (as if clear language were not critical to communication).
Adding to the confusion, many states have decided to create their own rules around CBD from hemp vs. CBD from marijuana. For example, in its state regulations last year, California essentially did the opposite of what the federal Farm Bill would do just a few months later: made CBD permissible only when derived from the high-THC strains covered in the state’s legal cannabis program. This places California’s regulations squarely at odds with federal law on the question.
This also means that if you’re a Californian purchasing hemp-derived CBD online, you’re circumventing state laws that require you to buy CBD in a dispensary after it has gone through all of the testing required of marijuana-derived CBD.
Second Question: CBD-Infused or CBD Isolate?
The 1971 Controlled Substances Act, which was tweaked by the Farm Bill to allow for industrial hemp, is not the only law that has something to say on the matter of CBD. The 1938 Food, Drug & Cosmetic Act gives the Food & Drug Administration responsibility for regulating food ingredients and additives, as well as those in drugs and cosmetics. The FDA has not approved any cannabinoids for such uses, which means that any such uses of CBD (even if it’s hemp-derived) are still illegal.
Upon passage of the 2018 Farm Bill, the FDA issued a statement that poured cold water on the euphoria. It emphasized “what the law didn’t change”: the FDA’s regulatory powers over food, drug and cosmetic ingredients under the FD&C Act. The statement did leave open a window of hope, saying that the FD&CA “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.”
It is the absence of FDA approval that has led health authorities in New York City and some other jurisdictions around the country to unleash a crackdown on CBD-infused edibles last month. This prompted a group of Capitol Hill lawmakers to send an urgent letter to the FDA demanding clarity on CBD’s status. But the matter was still unresolved when FDA chief Scott Gottlieb unexpectedly announced his resignation earlier this month.
The FDA’s Marijuana Questions and Answers page continues to state that CBD as a food additive or dietary supplement is not legal. It doesn’t discuss whether or not CBD isolate is considered legal; however, even a pure extract or “isolate” is usually suspended in a “carrier” substance such as hemp or coconut oil to help preserve potency and deliver the desired concentration per dose. Even if pure CBD was not sold as a food additive or dietary supplement, it still has not generally been approved by the FDA as safe and no testing regulations have been established.
The one exception to the illegality of CBD as a drug ingredient is Epidiolex, the anti-seizure medication that was approved by the FDA last June. This essentially forced the Drug Enforcement Administration to re-examine CBD’s status as a controlled substance. In September, the DEA issued a hair-splitting decision that removed Epidiolex from Schedule I, but not CBD itself. Now that the Farm Bill has basically gone over the head of the DEA on the question of CBD’s status under the Controlled Substances Act, the FDA is the last barrier to its free use.
However, despite the fact that the FDA has not released the rules for how it is going to regulate CBD yet, the legal risks of purchasing CBD products are still slim. Even before passage of the 2018 Farm Bill, there was a vigorous mail-order and over-the-counter trade in hemp-derived CBD. Manufacturers made the argument that it was legal by provisions of the 2014 Farm Bill that allowed “research” in hemp-derived cannabinoids. The federal government did not accept this argument when the matter went before the courts in litigation brought by the Hemp Industries Association — but neither did it move against the industry.
Following passage of the 2018 Farm Bill, the industry’s argument has been formally honored by the law. But a degree of confusion persists even now. And, even amid all the CBD hype, consumers should be aware of it. It’s worth knowing that if you’re buying CBD online, it’s most likely CBD from hemp — and that it is not regulated for safety by any government body.
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