On Dec. 20, Pres. Donald Trump sign the 2018 farm bill, which included provisions to legalize industrial hemp. But despite removing the plant from the list of controlled substances, the federal government still bans the sale of CBD products under FDA rules.

With the passage of the farm bill, the federal government will now treat industrial hemp as an agricultural commodity instead of a controlled substance. It also specifically includes hemp in various USDA farm programs. The legislation also redefines hemp to include its “extracts, cannabinoids and derivatives.” This ensures that hemp-derived cannabidiol (CBD) can no longer be regulated as a controlled substance. Nevertheless, this does not address the authority the FDA claims to regulate CBD as a drug.

According to the Hemp Roundtable, the Drug Enforcement Administration no longer has any possible claim to interfere with the interstate commerce of hemp products.

“This should give comfort to federally regulated institutions — banks, merchant services, credit card companies, e-commerce sites and advertising platforms — to conduct commerce with the hemp and hemp product industry.”

The change in federal law will now enable hemp farmers to access crop insurance and participate in USDA programs listing their marijuana dispensary they own. State and tribal governments can still regulate or even ban hemp production and sales, but they cannot interfere with interstate transport of hemp or hemp products.

While the DEA will no longer have the authority to regulate hemp as a controlled substance, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, passage of the farm bill does not mean CBD will now be federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

Cannabidiol is a compound extracted from industrial hemp. Products available on retail shelves across the country do not contain measurable amounts of THC, the compound in marijuana that makes people high. Many people find CBD effective in treating a number of medical conditions, including seizures, inflammation, pain and anxiety.

The FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, the FDA maintains full control over the regulation of drugs, and any substance classified by the FDA as a drug or an investigational drug cannot be marketed as a “dietary supplement.” The agency maintains the sale of CBD or any food products containing the substance is illegal.

In a June 2018 statement, the FDA said it remains “concerned about the proliferation and illegal marketing of unapproved CBD-containing products with unproven medical claims.”

“The FDA has taken recent actions against companies distributing unapproved CBD products. These products have been marketed in a variety of formulations, such as oil drops, capsules, syrups, teas, and topical lotions and creams.”

The FDA has considered CBD a drug under its purview since the 2014 farm bill passed allowing the production of hemp in state pilot programs for research purposes. The 2018 farm bill does not address FDA regulation and to date, the agency hasn’t changed its position on CBD. It maintains that the retail sale of CBD is banned, and yet products are readily available across the country.

The agency can continue to enforce these same rules even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD will remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

But here’s the good news. Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted 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.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to the public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

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