The other day, I was walking past a little strip mall in my Lexington, Kentucky, neighborhood and I saw a sign proclaiming “CBD Sold Here!” Now it doesn’t surprise me to see CBD products sold on every corner in big cities like Los Angeles and New York, but when you start seeing it in small-town, middle-America, you know it’s pretty much everywhere.
And believe me — it is pretty much everywhere. As I reported not too long ago, CBD has gone mainstream – and it’s a perfect example of nullification in action.
Cannabidiol (CBD) is derived from cannabis – generally in the form of industrial hemp. It has proven effective in treating a number of medical conditions, including seizures, pain and anxiety.
The New York Times recently ran a story headlined Why Is CBD Everywhere? highlighting the proliferation of CBD products across the nation and its exploding popularity. A New York advertising executive called it “the chemical equivalent to Bitcoin in 2016.”
“It’s hot, everywhere and yet almost nobody understands it.”
The article noted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”
“The tsunami of CBD-infused products has hit so suddenly, and with such force, that marketers have strained to find a fitting analogy. Chris Burggraeve, a former Coca-Cola and Ab InBev executive, called it the ‘new avocado toast,’ in an interview with Business Insider.”
I’ve discussed the medicinal value of CBD in previous posts. It isn’t just some kind of snake-oil fad. Serous researchers are touting the power of cannabidiol. NYU School of Medicine assistant professor Dr. Esther Blessing is heading up a study on CBD as a treatment for PTSD and alcohol abuse. She called CBD “the most promising drug that has come out for neuropsychiatric diseases in the last 50 years.”
“The reason it is so promising is that it has a unique combination of safety and effectiveness across of very broad range of conditions.”
According to the Times, CBD is also becoming huge in the beauty industry.
“Among beauty products alone, CBD has already achieved cliché status, popping up in blemish creams, sleeping masks, shampoos, hair conditioners, eye serums, anti-acne lotions, mascaras, massage oils, soaps, lip balms, bath bombs, anti-wrinkle serums, muscle rubs and a Sephora aisle’s worth of moisturizers, face lotions and body creams. Even the bedroom is not safe from the CBD invasion, to judge by the spate of CBD sexual lubricants on shelves.”
Everywhere you turn, you find CBD products sold right out in the open just like any other commercial product. There’s just one difference. It’s all illegal. At least according to the federal government, it is. As the NYT points out, “As with all cannabis products, the federal government categorizes CBD products other than Epidiolex as a Schedule 1 drug, like heroin, according to the Drug Enforcement Administration.”
Schedule 1 drug means illegal — as in total prohibition.
Don’t miss the significant point here. CBD has the same legal status as heroin according to the federal government. And yet you can buy it pretty much everywhere.
People in the cannabis industry who argue that CBD is legal over the counter generally rely on the “hemp amendment” tacked onto the 2014 farm bill. But the law only legalized hemp production for limited purposes. It “allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oilseed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.”
In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the farm bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”
In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.
The definition of “commercial” remains murky and has created significant confusion.
The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention CBD oil or other edible hemp products. The DEA has interpreted that to mean CBD and hemp food products remain illegal. According to the DEA, CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne, who reiterated the agency’s position.
“It’s not legal. It’s just not.”
Payne says cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the Agricultural Act of 2014 (better known as the “Farm Bill”) is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research — not CBD marketing and sales.
“Anybody who’s in violation [of the federal laws] always runs that risk of arrest and prosecution,” he said.
Another DEA spokesman told the Louisville Courier-Journal, “All hemp products that can be consumed are illegal.”
Nevertheless, people across the country are selling, buying and using CBD, and nullifying the federal law in practice and effect.
And the feds aren’t doing anything about it. The Times quoted DEA spokeswoman Barbara Carreno, who admitted that the agency isn’t enforcing marijuana or CBD prohibition.
“We’re not swatting joints out of hands in Hilo, Hawaii, and we’re not going to focus on somebody who is buying lotion or ice cream that has CBD in it.”
The fact is, they can’t. The federal government lacks the personnel and resources to crack down on CBD. Not to mention the PR nightmare it would create. State action has effectively nullified cannabis prohibition, as the fact that I can walk a block and pick up some CBD shows.