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Does the Farm Bill Legalize CBD, Too? Not Exactly

December 13, 2018
Hemp-derived CBD products are already sold and delivered nationwide. But the DEA still considers them illegal. The farm bill may change that, eventually. (Christin Hume/Unsplash)
President Trump is expected to sign the Agriculture Improvement Act of 2018—also known as the farm bill—later this week, after Congress approved the measure on Wednesday.

CBD is now a lot less illegal. But don't wave it in the face of a DEA agent.

With that signature, hemp will become legal nationwide. And cannabidiol (CBD) derived from hemp will become, well, a little less illegal. But not precisely legal—yet. It’s complicated.

On page 738 of the massive, 807-page, $867 billion spending bill is a provision inserted by Senate Majority Leader Mitch McConnell that legalizes hemp production, processing, and sale—removing the plant from the Controlled Substances Act..

“Making it official with my hemp pen,” he tweeted out Monday in advance of Senate approval of the bill. The measure went to the House for final approval two days later, where a final tally of 369 House members approved the bill.


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Just Another Commodity Crop

The new law would make hemp a legal agriculture commodity with the US Department of Agriculture retaining federal authority over the crop. (Hemp is legally defined as the plant Cannabis sativa with a THC content of less than 0.3%.)

Accolades from the cannabis, hemp, and CBD communities poured in immediately.

Pulak Sharma, co-CEO of Kazmira, a company focused on the large-scale production of CBD oil and isolate, praised the historic move.

“Now we can do some more studies into CBD and work with a lot more institutions that support it, and really understand how cannabinoids can help the industry overall and more specifically how they work with the human body,” Sharma said. “It’s going to invite a lot more folks to come into the industry and basically get a lot more innovation to happen. We are going to see a lot larger players as far as investors. But beyond the investment community, we are going to see a lot more banks come in, which means that CBD businesses will be able to grow because they can get capital from the banking system.”


Sharma’s comments rest on the assumption that the legalization of hemp automatically means the legalization of hemp-derived CBD. But all is not legal rainbows and unicorns for CBD producers just yet.

The DEA, for one, still considers CBD to be a Schedule I controlled substance.

A DEA clarification issued in March 2016, in response to a petition filed by Hemp Industries Association and others about marijuana, indicated that some CBD is still a Schedule I substance:

“As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leave. According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana.” The CSA defines marijuana as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”

But the clarification did say that trace amounts of CBD, if derived from stalks or seeds, were legal.


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More Confusing Clarifications

Then in September, following US Food and Drug Administration approval of purified CBD medication Epidiolex, the DEA moved to reschedule CBD. But the agency’s move rescheduled only FDA-approved forms of CBD—specifically Epidiolex. “As of right now, any other CBD product other than Epidiolex remains a Schedule I controlled substance,” DEA spokesperson Rusty Payne said at the time. “So it’s still illegal under federal law.”

The new farm bill section on hemp says otherwise. Sort of. In the bill, hemp is defined as “the plant cannabis sativa L, or any part of that plant, including seeds, derivatives, and extracts, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.”

Check Your State’s Law

Barry Grissom, a former US attorney and now the senior vice president of global policy for Electrum Partners, says that one of the misconceptions of the farm bill is that it is automatically going to change the law nationwide. “Hemp-derived CBD still may be illegal in different states,” he says. “There is going to have to be a process that goes to the USDA to set some standards. Each state is going to have an opportunity to submit their own administrative process to the USDA, and it may well be more restrictive than what the federal regulations are.”

According to David Mangone, director of government affairs for Americans for Safe Access, federal agencies will now have to respond to the farm bill, once it becomes law, by adjusting their policies regarding CBD. “The DEA will have to issue a rescheduling position on CBD that is consistent with this farm bill in the coming weeks,” Mangone says. “The FDA will also have to change their policies about CBD in edibles and dietary supplements as well to reflect this new law.”

But don’t expect perfect clarity. “There will still be that conflict between DEA and the Department of Agriculture about how to regulate this,” Mangone says.


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The Feds Must Adapt

So the DEA, the FDA and the US Department of Agriculture all have to discuss what to do now that hemp has been legalized. Mangone says that he thinks new federal regulations about hemp production will come during the first months of 2019.

Legalizing hemp is 'part of the momentum' moving Congress closer to the passage of cannabis bills, said Rep. Earl Blumenauer (R-OR).

Congressman Earl Blumenauer (D-OR), a longtime cannabis legalization advocate, also weighed in on the bill’s passage. He didn’t vote for the farm bill (and ironically, ardent legalization opponent Rep. Pete Sessions (R-TX) did), citing the fact that it didn’t address issues like tariffs and climate change, among others. But Blumenauer acknowledged that he was pleased with the hemp portion of the measure. “Hemp was one of the bright spots,” he told Leafly.

“I have been working on the hemp issue as long as anybody in Congress,” Blumenauer added, “and I am very pleased with it. The hemp activists in Congress are growing every year, which gives me no small measure of pride, and signals part of broader agenda that the next Congress is going to be the most enlightened and positive on cannabis that we have ever had.”

The passage of the bill is “part of the momentum” in Congress to take up cannabis bills, Blumenauer said.

Will the passage of the bill affect any cannabis regulation now in Congress, like the STATES Act? “I have talked to the new committee leadership, and there is now a great deal of interest in talking about banking and research and veteran’s access,” Blumenauer said.

David Hodes's Bio Image

David Hodes

David Hodes is a business and lifestyle writer based in the greater Washington D.C. metropolitan area. He is the former editor of seven different business magazines, and has contributed feature articles to several general business/lifestyle publications as well as a number of national cannabis magazines. He is member of the National Press Club, and deputy booking agent for the National Press Club Headliners Committee.

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  • BA5578

    First of all, this is awesome. What a great step in the right direction. My hope is that this will pave the way for everyone to see how beneficial hemp is for personal, medical and industrial uses, that it will force the last hold-outs to let go of their Reefer Madness and eventually accept THC into the mix.
    Second, I used to almost respect Earl Blumenauer. He has been so pro- cannabis up to this point, but he can’t stop crying about climate change long enough to vote for cannabis’ biggest advancement (at least at the federal level) in many decades.
    Even Pete “I hate everything remotely resembling cannabis” Sessions voted for it.
    This bill and hemp’s legalization isn’t the end of the road for those of us who know cannabis should be legal across the board, but it sure is a breath of fresh air!

  • Back to the basics

    Typical government bullshit! The government works for us, or they’re supposed to. If the majority of Americans want it, then the government should respect that decision!!!!! You can drink a bunch of booze and do way more damage to yourself and others!. Common sense and give the people what they want, we pay taxes and the government needs to do their job or get fired!!!

  • I read two October articles online both dated 10/1/2018 in “Marijuana Moment” and reposted in “Vote Hemp” that due primarily to FDA recommendations in the wake of Epidiolex the DEA downgraded CBD oil from Schedule I to V on Friday September 28, 2018, with DEA making disclaimer that certain “international treaties” they say they are bound to might force them to revisit that (and upgrade it again); but many of us are working on the assumption that DEA is set at Schedule V and that further legislation along with the medical research that is expected to follow, will likely move it out of any drug schedule at all (hopefully.) We should all know that due to Epidiolex and public input the FDA officially recommended to the DEA that it remove CBD and non-psychoactive cannabinoids out of ANY drug schedule. Has that changed and is it back to the DEA’s Schedule I? Where is the discussion in that process of reclassifying up or down? I could ask those two online newsletters. Thanks for the article, and to the author: your updated clarification appreciated.

  • Richard Bourne

    one thing is that the

    male plant has no noticable thc content unlike the female that has 25%

  • pmmechanic

    The Goverment needs to deregulate canibus altogether and don’t worry about regulating it, it will regulate its self.

  • Dave

    Our government should legalize cannabis (NOT just CBD’S) in ALL states for adult use and medical use. I went from 29 pills/day for pain to 5 pills in 6 years with cannabis. I’m a 57 year old veteran with chronic low back pain

  • MV 1967

    They will get over it. The day approaches.

  • Elaine Williams

    It doesn’t really make that much sense. They are taking away a natural extract of the Industrial Hemp Plant and turning it over to Big Pharma so they can charge big money for it, and put it in forms that actually create side effects that aren’t seen in the natural substance. The Full Spectrum Hemp extracts have been available to people for a long time and labeled as a supplement. Now with Big Pharma trying to take it over, it takes a natural substance away from people who now have access to it. Now they are saying that since CBD is a component in a drug that it can’t be called a supplement anymore. The are ripping natural substances away from the people and putting them in the hands of pharmaceutical companies. The FDA also isn’t just about drugs. The “F” in FDA in it stands for “food.” The CBD companies I have dealt with as a distributor have third party testing and make their products in FDA approved facilities- the same type of facilities that regulate and inspect our other food products. Epidiolex contains extracts of the marijuana plant which puts it in fuzzier legal status because of marijuana’s federal legal status, than the extracts of the Industrial Hemp Plant. As soon as we turn over natural substances to Big Pharma, we are allowing them to be taken out of the natural realm and the people. All of these products should be tested for safety and effectiveness, but that doesn’t mean turning them over to Big Pharma.

    • GoWiThaFlo

      Cannabidiol (CBD) and delta-9 tetrahydrocannabinol (THC) are derived from the SAME source: the seedless, female flowers of cannabis plants–as are all of the medicinal cannabinoids. That’s why the Drug Enforcement Administration’s bureaucratic hacks consider CBD in the same category as “marihuana” (the actual spelling in Schedule I of the Controlled Substances Act). The recent Farm Bill only further muddies the waters of legal cannabis, arbitrarily imposing this ridiculous “0.3 percent THC” definition on “hemp.” Yet no man-made law can change the botanical processes of dioecious cannabis plants. Male flowers pollinate the females, and only the females then bear seeds. That is a true “hemp” crop, more or less devoid of CBD and other cannabinoids (excepting “trace amounts” as described above).

      The only real solution here is permanently repealing the Schedule I “marihuana” classification. It has been rooted in nothing but lies and fraud the entire time.

  • Sam Lopes

    Isn’t it sad that it took a big pharma push to finally kickstart the change at federal level?

    If it wasn’t for the millions (billions?) Invested by that company on the bureaucratic process and “peer reviewed” studies, would we be seeing such a quick move of the bill through the channels ? Let’s not forget how much they may have invested in lobbying senators.

    It’s just sad that in America, democracy is an illusion. The people actually have no voice, it’s all about lobbies and corporate interests pushing agendas.

    Somehow we should be happy that things are changing, but this is a sign that we are loosing control of the country.

    Just look back at how much lobbying was done to push nicotine vape products away and instigate fear, once it started hurting the big tobacco business.
    The result: FDA regulating and banning any vapor products unless they pass their tobacco product approval process, which means only the big tobacco corps. that have the money to lobby and order biased scientific studies on their product will be able to put products on the market. And now ex-smokers are supposed to trust big tobacco again and put their lives in the hands of the companies who lied and poisoned people for ages.

    The change we are starting to see isn’t about giving people their freedom of choice, it ain’t about medicinal value. It will be driven by money, pure and simple.
    I see that’s mostly what moved Canada into legalization. Same will happen in the US or worse.
    This is not Uruguay where they decided to look at it as an elementary freedom of people and a public health issue when comes to abuse, with the government being the supplier of cannabis at $1/gram.

    Capitalistic economic system is great for development, but left unchecked it will undermine true democracy and true freedom. Just my 2 cents