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The Ghost of CBD Past


CBD oil. CBD-infused food. CBD balms and beauty products. CBD pet products. CBD seems to be everywhere and on everyone’s news feeds these days. Indeed, these are exciting times for the hemp industry, as President Trump is set to sign the Agricultural Improvement Act of 2018 – a development that will fundamentally change the hemp industry in America.

Over the next few days, we will be exploring the ins and outs of industrial hemp and cannabidiol (better know as “CBD”). What’s the difference between industrial hemp and marijuana? What is CBD and what are its uses? Is it legal to sell CBD? If not, why can I buy it on the internet or at the store at the end of my block? What’s next for the hemp/CBD industry? We will answer these questions and many more.

In this first post in our CBD Holiday Series, we are going to cover some basics, and look back at hemp’s past and how we got to where we are today.

Let’s start at the beginning: what is the difference between hemp and marijuana? Marijuana and hemp are both variants of the Cannabis sativa L. plant. Marijuana contains the psychoactive compound tetrahydrocannabinol (“THC”), which is the active compound that produces the “high” when marijuana is ingested.  Industrial hemp, on the other hand, is defined by the federal government and the majority of state governments as the plant Cannabis sativa L. and any part of it, with a THC concentration of not more than 0.3 percent on a dry weight basis. CBD, the non-psychotropic cannabis extract, falls within this definition.

In short, marijuana is an intoxicating substance and industrial hemp/CBD is not. Although it does not produce a “high,” CBD has been reported to have many potential health benefits, including preventing seizures and acting as an anti-inflammatory agent. However, because both industrial hemp (CBD) and marijuana have been classified as Schedule I controlled substances, there is a dearth of federally-approved studies devoted to CBD’s health benefits.

Hemp and marijuana were not always considered dangerous controlled substances by the U.S. government. In fact, in the colonial period and during the founding of our country, hemp was a vital and important crop. According to the National Hemp Association, the colony in Jamestown, Virginia enacted the first marijuana law in 1619, requiring farmers to grow hemp. The term “marijuana” first appeared in the late 19th century, but it was not until the 1930s that the U.S. Bureau of Narcotics (now the U.S. Drug Enforcement Agency) began using the term to refer to all forms of cannabis, including hemp.

For decades, industrial hemp has suffered the same stigma as its intoxicating cousin, marijuana. In 2014, however, the tide began to change with the passage of the Agricultural Act of 2014 (the “Farm Act”). The Farm Act included a provision that allows universities and state departments of agriculture to cultivate industrial hemp for limited purposes. Under the Farm Act, the hemp must be grown for research purposes and allowed under state law.

While the Farm Act breathed life into the dormant hemp industry in 2014, hemp remained a Schedule I drug under the federal Controlled Substances Act (“CSA”). Because of this, the U.S. Food and Drug Administration (“FDA”) has taken the position that CBD products derived from hemp could not be sold as a dietary supplement or approved for use as a food product because there have not been sufficient clinical trials or tests to prove it is beneficial to human health.  And in the name of consumer protection, the FDA has issued cease and desist warning letters to various CBD producers who have made claims about the efficacy of CBD for curing various diseases, such as cancer, or treating its symptoms.

In 2018, however, the effort to fully legalize hemp and CBD gained increased momentum. On May 22, 2018, the U.S. Drug Enforcement Agency (“DEA”) released an internal directive stating that the DEA will no longer enforce the provisions of the law pertaining to CBD made from stalks, seeds, and other products that fall outside the CSA definition of marijuana. The directive states:

“Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.”

Shortly thereafter, in June 2018, the FDA approved Epidiolex, a drug formulated to treat a form of childhood epilepsy using cannabis-derived CBD.  On the heels of this landmark approval, the DEA announced on September 28, 2018, that Epidiolex was being rescheduled to Schedule V.  Because this result is contrary to marijuana’s and hemp’s continued Schedule I classification, which requires that the drug has no recognized medicinal value, many observed at the time that the DEA’s move to designate Epidiolex as a Schedule V drug likely foreshadowed the re-scheduling of other cannabis-based compounds.

That brings us to today, December 20, 2018. President Trump is poised to change, with the stroke of a pen, industrial hemp’s (and CBD’s) legal status through legislation.  Our next post will focus on the Agricultural Improvement Act of 2018 and its far-reaching implications.

If you have any questions about this post or any other related matters, please contact our Cannabis Law Practice Group.