Megan E. Sheehan, Esq., Samantha L. Roy
Megan E. Sheehan, Esq. The Law Office of Maura L. Sheehan Barrington
Samantha L. Roy Law Clerk, The Law Office of Maura L. Sheehan J.D. Candidate at Roger Williams University School of Law
CBD appears to be everywhere-gas stations, health food stores, gyms, and smoke shops. There are CBD infused barbecue sauces, pet treats, and makeup currently on the market. Big celebrities, such as former Patriots player Rob Gronkowski and lifestyle maven Martha Stewart, are getting into CBD endorsements.1 So, what exactly is CBD, and is it legal?
What is CBD and Why Do People Use It?
CBD is an abbreviation for cannabidiol, which is a compound derived from the cannabis plant. The cannabis plant has been broken down into two classifications under federal and most state laws-hemp and marijuana. The key difference between the two classifications comes from the percentage of Delta-9-tetrahydrocannabinol ("THC") in each plant. THC has psychoactive properties and is the reason why individuals who use marijuana experience a "high."2 CBD is the second most prevalent active ingredient found in marijuana after THC. On its own, CBD does not induce psychoactive effects or a "high" upon use. CBD can be found in cannabis plants that fall under either hemp or marijuana, in varying percentages based on the specific plant. However, most of the CBD being sold outside of marijuana dispensaries is extracted from the cannabis plant that falls under the hemp classification.
Individuals turn to CBD products for a wide variety of reasons ranging from anxiety, minor inflammation, insomnia and pain management.3 Some users of CBD claim the compound has been "life-changing."4 A European Journal of Pain study found decreased inflammation and pain from topical use of CBD, and noted its effectiveness in reducing symptoms of arthritis.5 CBD comes in a wide variety of products and forms, such as topical creams, tinctures, and edibles, or can be consumed by smoking raw hemp flower. There are products that are made from CBD isolate, which is just the CBD extracted from the cannabis plant, as well as "full spectrum CBD," which is CBD with the other cannabinoids found in the plant.
The CBD market is currently big business and is expected to continue to grow. According to a study by BDS Analytics, the CBD market is projected to exceed $20 billion within the next five years.6 Large Canadian cannabis companies (where all forms of cannabis are legal) are looking at major acquisitions of CBD companies within the US. Millennials and baby boomers are reported to be some of the largest consumers of CBD products.8
The Farm Bill
Why does CBD all of a sudden seem to be everywhere? A lot of that is due to the passage of the Agriculture Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill). The 2018 Farm Bill explicitly exempted hemp (cannabis with less than .3% THC by dry weight) from the Schedule I of the Controlled Substances Act.9 The 2018 Farm Bill explicitly allows the transfer of hemp-derived products across state lines for commercial or other purposes. The legislation also expressly states that there is no prohibition on the movement of hemp and hemp-derived products in interstate commerce.10 That means hemp and hemp-derived products are no longer an illegal substance under federal law, with some important qualifications.
Hemp is one of the oldest industries, and records of hemp use date back to approximately 8000 BC. Many of the founding fathers, such as George Washington, Thomas Jefferson and John Adams, grew hemp as an agricultural crop. Hemp had a wide range of uses, including textiles, parchment and fuel. The Marijuana Tax Act, passed in 1937, heavily regulated hemp, as well as marijuana, and greatly reduced the prevalence of hemp and hemp-based products. In 1970, the government did away with the taxation approach and passed the Comprehensive Drug Abuse Prevention and Control Act, which effectively made all cultivation of cannabis illegal.11
Unlike other agricultural products, such as wheat or soy, legalized hemp comes with significant restrictions under the 2018 Farm Bill. The Farm Bill ensures that any cannabinoid-a set of chemical compounds found in the cannabis plant-that is derived from hemp will be legal if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, associated state regulations, and by a licensed grower.12 First, in order to be considered hemp, the plant must contain.3% THC, otherwise it would be considered marijuana and, therefore, under federal law a Class 1 drug under the Controlled Substances Act.13 Second, the states are given authority to regulate hemp, but their state regulatory and licensing structure must be approved by the USDA in order to be in compliance with the Farm Bill.14 Under the Farm Bill, state departments of agriculture must consult with the state’s governor and chief law enforcement officer to devise a plan that must be submitted to the secretary of USDA. Under federal law, a state’s plan to license and regulate hemp can only commence once the secretary of USDA approves that state’s plan. In states opting not to devise a hemp regulatory program, USDA will construct a regulatory program under which hemp cultivators in those states must apply for licenses and comply with a federally-run program. Finally, the federal law details possible punishments for violations, pathways for violators to become compliant, and even which activities qualify as felonies under the law, such as repeated offenses.15
FDA and CBD
After the passage of the 2018 Farm Bill, there was a public sentiment that hemp, and hemp derivatives such as CBD, had a pathway to complete legalization on the federal level. The Food and Drug Administration’s stance on CBD has made the waters murkier, however. In June 2018, the Food and Drug Administration (“FDA”)...