On December 20, 2018, The Hemp Farming Act of 2018 was officially signed into law by President Trump, ending a multi-decades federal prohibition of hemp cultivation in the US. Incorporated as part of the larger 2018 U.S. Farm Bill, the law modified the Controlled Substance Act to clarify the exclusion of hemp from the term “marijuana,” thus removing hemp from the DEA’s Schedule 1 listing of controlled substances. Before determining what this means for the industry going forward, it’s important to review what the hemp landscape looked like before the passing of this bill.
For centuries, hemp has been utilized as one of the most versatile agricultural crops in existence. The key problem however, lies in the fact that both hemp and marijuana belong to the same species of plant- Cannabis sativa L. Alongside a multitude of genetic and other differences, “marijuana” generally refers to cannabinoid-rich strains cultivated for their psychoactive and non-psychoactive properties. Contrarily, “hemp” generally refers to plants with lower cannabinoid values that are cultivated for their fibers and seed oil with the purpose of being manufactured into other products. Despite hemp not containing almost any THC (tetrahydrocannabinol), the primary cannabinoid attributed to marijuana’s “high” feeling, its association with marijuana caused its eventual demise when all cannabis plants were effectively made illegal in 1937 under the Marihuana Tax Act and formally made illegal in 1970 under the Controlled Substances Act, with no differentiation made between hemp and marijuana.
*As a side note, exemptions from the legal definition of marijuana did exist including “…the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.” Thus, anything falling under these exemptions were still allowed to be imported into the country.
The Agricultural Act of 2014 was a momentous step forward in that it removed federal restrictions and enabled the creation of agricultural pilot programs for the research and cultivation of hemp in states that had legalized doing so. In addition, industrial hemp was defined in legal terms- “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Although just an arbitrary figure, this 0.3% limit signified the federal governmental finally acknowledging a distinction between hemp and marijuana, paving the way for current regulations.
So What Now?
With the passing of the Farm Bill on December 20, 2018, hemp and hemp products (including hemp-derived CBD) have officially been removed from the Controlled Substances Act (CSA) and thus, the purview of the DEA. It’s important to note that any product containing more than 0.3% THC (whether marijuana or hemp-derived) remains federally illegal. Additionally, hemp-derived CBD still remains under the purview of the Food and Drug Administration (FDA). In a statement FDA Commissioner Dr. Scott Gottlieb released last December,
“… it’s unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements.”
While pathways do currently exist to get FDA approval for CBD infused consumables, further guidance is required to clarify this process and determine the legality of products that have already flooded the market in recent years. The FDA is set to have its first public hearing to discuss these issues on May 31st, 2019- stay tuned until then.