News & Education April 22, 2020

What The 2018 Farm Bill Means for CBD

For decades, federal law did not differentiate hemp from other cannabis plants despite the fact that hemp contains a negligible amount of THC; often 0.3% or lower, an amount of THC that cannot induce psychoactive effects or get you high. This changed when the 2018 Farm Bill was signed into law and the policy around hemp took a drastic turn. By reclassifying hemp and distinguishing it from marijuana, the 2018 Farm Bill removes hemp from the Controlled Substances Act and allowed for regulation and enforcement of the crop under the jurisdiction of the USDA.

Hemp farming has since become more expansive, allowing for a broader approach towards the cultivation of the crop so long as hemp-derived products are produced in a manner that is consistent with the law. However, this law also carries many restrictions and does not create a completely free system for hemp cultivation. 

Through this bill, states and Native American tribes were also given shared regulatory power and broad authority to regulate and limit the production and sale of hemp within their borders. The state’s plan must be devised and submitted for approval through the secretary of the USDA and cannot commence beforehand. This makes the laws throughout the country surrounding CBD and hemp varied and can sometimes create friction when it comes to the distribution of products across state lines.

What The Farm Bill Didn’t Do

Outlined within the bill are also the actions that are considered violations of the federal hemp law and possible punishments for violations, repeat offenders, as well as pathways for compliance.

Although hemp-derived products are removed from the Schedule I status of the Controlled Substances Act, the legislation surrounding CBD does not legalize it. It will only be considered legal if and only if it is produced in a way that’s consistent with the Farm Bill, associated federal regulations, state regulations, and produced by a licensed grower. Anything else remains a Schedule I substance and is considered illegal by the FDA. Part of compliance is that CBD must be produced from hemp that contains less than 0.3% THC which can sometimes be tricky as a plant’s THC levels will vary through the maturity of the crop.

The 2018 Farm Bill has had no effect on state-legal cannabis programs and is still considered illegal under federal law. Whether it’s for medical purposes or adult use, every program for legal cannabis consumption is illegal under federal law. Many people believe that there will be hope for these programs now that the Farm Bill has been passed and shows a greater acceptance for broader cannabis reform.

Although legal CBD products are available more broadly, not all CBD products will be legal moving forward. Transparency from companies is important and you should get to know your producer and whether or not they fall into compliance with the new law. 

FDA Addendum To 2018 Farm Bill and Clarification

DA has clarified that any product marketed with therapeutic claims will have to be approved by them before the introduction into interstate commerce. This includes CBD infused substances claiming to offer health benefits or marketed as dietary supplements. The FDA’s chief concern is stopping deceptive marketing practices of companies looking to cash in on the CBD movement that’s quickly been growing especially after the Farm Bill was instated into law. 

Since CBD is an active ingredient in FDA-approved drugs such as Epidiolex, which is used to treat two rare and serious forms of epilepsy, its addition to food and dietary supplements is considered illegal. They have previously sent warning letters to companies who sell CBD-infused substances who claim to offer health benefits for the prevention and treatment of serious diseases. However, these products can be marketed legally so long as they are not promoted with therapeutic claims. 

It is important that companies remain as transparent as possible when describing their products during the current changing landscape surrounding hemp and CBD in order to avoid problems with the FDA.

USDA Proposed Rule (January 2020)

The USDA proposed an interim rule to the 2018 Farm Bill in October of 2019 dictating that hemp farmers must harvest their hemp crop within 15 days of being tested for THC. The sample will be taken from the top of the plant, where the highest concentration of THC is located, and send them to an approved Drug Enforcement Administration (DEA) lab. 

Crops that test above 0.3% THC and THCA, a nonpsychoactive component of the plant, must be destroyed and farmers whose crops repeatedly test for 0.5% THC will be suspended from growing hemp. 

There has been confusion surrounding this ruling and frustration on the part of farmers who say that the rule is unflexible considering how stressful and labor-intensive it is to grow hemp. Sunlight, moisture, and soil composition can all determine a plant’s THC to CBD ratio and choosing the right harvesting window are critical for the crop to be within acceptable levels. It is for that reason that the 15-day harvest window period is leaving farmers with little wiggle room. 

USDA states that an estimated 20% of crops will fail under the proposed regulations, causing more doubt on whether new regulations will kill a promising new industry. 

Farmers say that the regulation is not informed by the reality of the crop and many have begun lobbying for a 1% THC limit and 30-day harvest window in order to give more flexibility while remaining well under THC levels that can get people high.  

 The USDA has since extended its public comment period until the end of January.