With the removal of hemp-derived CBD from controlled substance status, big market growth is expected for the very chic and purportedly salubrious non-intoxicating cannabinoid.
Some 30 states have passed medical marijuana laws (of widely varying degrees of leniency) either by legislation or referendum since California led the way with Prop 215 in 1996. But these are now joined by several states that have legalized only products containing CBD not the psychoactive cannabinoid THC. There is some controversy as to whether these states should be recognized as “medical marijuana” states.
Utah was the first to adopt such a compromise measure in 2014, passing a law allowing medical use of cannabis extracts that contain CBD, though not actual cannabis and nothing containing THC. The move came in response to pressure from the parents of children suffering from severe epilepsy.
Numerous other states have since followed in passing CBD-specific laws. According to a breakdown provided by the National Organization for the Reform of Marijuana Laws (NORML) these are Alabama, Florida, Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, Wisconsin and Wyoming.
To this list can now be added Kansas, which in April 2018 passed a law exempting CBD products from the state’s criminal code. South Dakota passed a similar law in 2017, but it made sales contingent on approval by the federal Food & Drug Administration. And despite the Farm Bill provisions, the FDA has still not approved most CBD products, so for the moment the South Dakota law changes little.
Of these states, only two actually allow herbaceous cannabis: Texas and Florida. The laws in these states permit use of low-THC, CBD-rich strains but bar actually smoking it, allowing only vaporization.
But Florida in 2016 and Missouri and Utah in 2018 both passed general medical marijuana laws by referendum, though implementation of the Florida medical marijuana has been slow and fraught with controversy.
The imperative to keep CBD and marijuana distinct in the public mind is especially strong in states such as Mississippi with notoriously harsh cannabis laws. Wyoming has an especially limited CBD-only law, requiring a statement from a neurologist to the state Health Department that an epilepsy patient has not responded to other treatments.
Farm Bill Slices the Definition Thin
This imperative is also reflected in the language of the Farm Bill that President Trump signed days before Christmas. As the National Law Journal notes, Section 12619 of the Farm Bill formally removes hemp-derived products from Schedule I status under the Controlled Substances Act but does not legalize CBD more broadly.
“The Farm Bill authorizes CBD only to the extent that it is contained in hemp produced in a manner consistent with the Farm Bill and other federal and state regulations,” National Law Journal states.
Additionally, while hemp-derived CBD is removed from Schedule I, it is still subject to regulation by the Food & Drug Administration. And while the regulations are expected to change, the FDA currently considers CBD a drug and an illegal food ingredient.
Hemp Industry Daily has just issued a Hemp & CBD Industry Factbook, projecting that CBD sales in the U.S. will exceed $1 billion by 2020. It also notes that only 3 percent of hemp and CBD retailers responding to a survey for the Factbook described their shops as medical or recreational marijuana stores.
But in some states, there are actually legal obstacles to maintaining the distinction between CBD and “marijuana.” Ohio, Michigan and California have banned the sale of cannabinoids outside the state medical marijuana programs. In California, all hemp-derived CBD has been banned by state health authorities — only that derived from psychoactive cannabis covered by the state medical program is permitted. This law puts California squarely at odds with the federal Farm Bill.
Overall, there are still legal complexities, ambiguities and outright contradictions standing in the way of unfettered growth for the burgeoning CBD industry. And the distinction from long-stigmatized “marijuana” that so many have so much invested in may ultimately prove difficult to maintain.
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