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The Farm Bill Legalizes Hemp and Almost CBD

The US has finally joined the rest of the world in legalizing the commercial cultivation of industrial hemp. In the past, US companies could only import hemp to produce their products. Several years ago in a prior version of the Farm Bill, Congress authorized hemp cultivation for research purposes. Now, under the 2018 Farm Bill (Section 10113) commercial hemp cultivation can happen on US soil for the first time since the start of prohibition.

The Farm Bill Redefines Hemp & CBD

Under federal law cannabis is either Marihuana or Hemp. Marihuana is Schedule I and completely prohibited. Hemp is not marihuana and legal if it fits the federal definition. Previously it was defined as only the mature cannabis stalks, sterilized seeds, and products made from them so long as they had < .3% THC. Most importantly, this did not include any extracts from these parts of the plant, even CBD.

The 2018 Farm Bill expands Hemp to include any part of the plant with < .3% THC including “extracts, cannabinoids and derivatives.” Thus hemp-derived CBD extracts are no longer Schedule I Marihuana. One important note, the Farm Bill protections only apply if the hemp is produced in accordance with state and federal law. Therefore it is unclear if CBD extracts imported from abroad are still classified as Schedule I Marihuana instead of Hemp.

States Must License Hemp Cultivators & Manufacturers

Under the Farm Bill, states will be responsible for implementing industrial hemp regulations. First though they must submit their regulatory program to the Secretary of Agriculture for federal approval. Once the plan is approved, a state may move forward with licensing hemp cultivation and licensees will be able to sell their products across state lines. Some states already have regulatory plans on the books or in the works. Now is the time to demand your state legalize industrial hemp cultivation.

Isn’t CBD Already Legal Across All 50 States?

NOPE! Until the 2018 Farm Bill, CBD was Schedule I under federal law. Additionally, all states classify CBD as marijuana and it is illegal unless the state allows medical or adult use, even hemp-derived CBD. Click here to learn why CBD products are everywhere.

Marihuana & CBD with >.3% THC are Still Schedule I

Both “Marihuana” and THC are separate Schedule I drugs. THC in Hemp is still Schedule I, but the < .3% THC is exempted.

Marihuana CBD was considered marihuana

In 2018 the DEA declared that CBD is included in the definition of Marihuana and thus is Schedule I. Prior to the 2018 Farm Bill, Marihuana included any extract from the resin of the cannabis plant, including CBD extracts (fn 5). The source of the resin, cannabis flowers or hemp, did not matter. Hemp extracts from other legal parts of the plant were not Schedule I, but the DEA stated that this is impracticable because hemp generally does not contain enough CBD in resin or any other parts of the plant to extract more than a few parts per million.

Hemp is not Schedule I, but the prior federal definition of hemp only included the mature cannabis stalks, sterilized seeds, and products made from them so long as they had < .3% THC. The 2018 Farm Bill expands hemp to include any part of the cannabis plant that contains < .3% THC, most importantly “extracts, cannabinoids and derivatives.” Thus hemp-derived CBD extracts are no longer Schedule I Marihuana. THC is still Schedule I, but the < .3% THC in hemp and hemp products is exempted.

The Farm Bill says nothing about CBD other than generally excluding <.3% THC hemp and hemp extracts from the definition of Marihuana and it does not limit the percentage of CBD or any other cannabinoid allowed in hemp besides THC.

Even though hemp derived CBD is no longer considered Marihuana, it is questionable if pure CBD extracts are still Schedule I because the DEA may reclassify them as Marihuana. They made it clear that the prior hemp exemption did not apply to CBD extracts (fn 5) and they are not expected to let it go easily. This could lead to the proliferation of “Whole Hemp CBD Products” or “Whole Hemp CBD Extracts” instead of “Full Plant CBD Concentrates.” Presumably these can have any amount of CBD practicably obtained from hemp. 

It is important to remember that the Farm Bill exceptions only apply if the hemp is produced by a licensed cultivator in accordance with state and federal law. CBD extracts imported from abroad are still classified as Schedule I Marihuana.

The DEA Has The Say-So On CBD

The DEA will determine what happens next with CBD since they have the authority to schedule, reschedule, and exempt any controlled substance (like they recently did with Epidolex, an FDA approved CBD medication). They could affirm that CBD in hemp is not Marihuana but place CBD extracts in Schedule I. They could allow a limited percentage of CBD extracts from hemp, perhaps 5% or even 100% with <.1% THC. The DEA could also defer to the states and declare that any CBD products produced in accordance with state laws are exempted from the definition of Marihuana. This would legalize CBD extracts from hemp and cannabis flowers, the ultimate goal for the CBD industry.

If the DEA does not act, it is possible that Congress will address CBD with legislation in the coming years or in the next Farm Bill scheduled for 2024.

What Does California’s BCC Say?

According to CA’s Bureau of Cannabis Control, CBD is classified as a cannabis product that requires a state license. Flower CBD must obtain the appropriate cannabis license. Hemp CBD must obtain a CA industrial hemp license. The industrial hemp licenses have not been developed yet and are not available. So the cannabis license is the only one currently available to hemp-based CBD manufacturers. California will need to develop it’s industrial hemp program and get federal approval before any cultivation of hemp is allowed.

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