CBD Products Are Everywhere, but Is CBD Legal? Not Exactly
July 12, 2018It’s pretty easy to tell if recreational marijuana is legal in your state—you can walk into a store and buy it, you drive past 15 pot-leaf billboards on your way to work, and the smell is everywhere. But the legality of cannabidiol, weed’s won’t-get-you-high sibling, is trickier. Wherever you live, CBD (one of the main components of the cannabis plant, along with THC) is likely freely available. It’s on health food store shelves across the country, sold online, and even in pet stores. CBD supplements and oils are being marketed as the latest health and wellness cure—they're purported to have anti-inflammatory properties, calm anxiety, and relieve pain. CBD can be taken orally or used topically, say, to soothe muscle aches, which is the reason Olivia Wilde told the New York Times she uses it.
So it’s legal, right? Maybe, maybe not. It depends who you ask.
Most CBD oils are hemp-derived, which, by definition, means they contains less than 0.3 percent THC. (Hemp is cannabis that can’t get anyone stoned.) But the Drug Enforcement Agency still considers “marijuana (cannabis)” a Schedule I controlled substance, in the same category as heroin and meth.
“Hemp is a made up word,” DEA spokesperson Rusty Payne told me. “For it to be controlled, it has to fall within the definition of marijuana, not just test positive for THC. When it comes to CBD, these products are coming from the plant, which is controlled, which is illegal.”
Tell that to hemp farmers and distributors across the country. Last year, CBD consumer sales in the US were over $350 million. Some projections indicate that by 2020 that figure will surpass $1 billion.
Anyone in the US can buy CBD oil right now on Amazon. Gwyneth Paltrow was recently peddling CBD chocolates on Goop as a suggested Mother’s Day gift. There’s CBD coffee, face oil, shampoo, candy and of course, vape juice. The World Health Organization concluded that CBD is not harmful, and earlier this year, the World Anti-Doping Agency removed it from its prohibited substances list.
Most hemp producers cite the 2014 Farm Bill as evidence their business is legal. In it is a provision that allows people to cultivate hemp for research purposes under pilot programs connected to universities or state agricultural departments. The bill defines “industrial hemp” as any part of the cannabis plant with less then 0.3 percent THC. Forty states have passed legislation authorizing pilot programs, and 19 of those states have active programs, cultivating and researching hemp under the guidelines.
But what about the remaining ten states? “If you’re growing hemp in a state where there’s no pilot program, then you’re committing a felony,” said Jonathan Miller, general counsel to the US Hemp Roundtable, a coalition of hemp companies. “Even if you’re growing hemp and there’s 0.0 percent THC, it is as if you are Walter White in his camper, making meth. It’s ridiculous, but that’s the way the current law is.”
If a grower is in a state producing hemp protected by the Farm Bill, that hemp is considered legal. Miller advises clients he works with to indicate on the label of their CBD products that they use Farm Bill hemp. Otherwise, consumers have no real way of knowing if what they’re buying is legal.
If you understand all that, here’s another twist: The DEA argues that while the Farm Bill allows growers to cultivate hemp, that doesn’t mean they can sell it.
“People are taking the Farm Bill and they are interpreting it in a way that it wasn’t intended,” said Payne. “It doesn’t say, ‘Oh yeah, you can just mass produce this stuff and then start selling it.'”
Hemp growers and supporters I spoke with told me that marketing and distribution are protected implicitly in the bill—after all, one can’t test a product’s viability without seeing if anyone wants to buy it. The DEA said that’s not true.
"It’s tolerated. It’s not being enforced. It is absolutely illegal, especially according to attorneys of the USDA, DOJ, DEA and FDA.”
Right now I live in California, where marijuana is legal and CBD is so widely available a lot of coffee shops will put it in lattes. But if I purchased a CBD product from Colorado, which has a pilot program, and had it shipped to me, according to Payne I’d be breaking the law.
“Now, does that mean we’re going to come in and search warrant your house?” Payne laughed. “No, we’ve got bigger fish to fry. We are in the midst of an opioid epidemic. I think people think (CBD) is high on the priority list right now. It is not.”
“If you ask farmers or companies in Kentucky or Colorado, they say, ‘Yes, we ship to all 50 states because it’s legal,’” said Michael Brubeck, CEO of Centuria Natural Foods, the largest processor and supplier of CBD hemp oil in the country. “Well, it’s tolerated. It’s not being enforced. It is absolutely illegal, especially according to attorneys of the USDA, DOJ, DEA, and FDA.”
This legal ambiguity can cause problems. In April, Shopify, an e-commerce site, dropped Treatibles, a company that sells phytocannabinoid products for pets. Treatibles sent out notices to customers via email and social media, encouraging them to write letters, citing the 2014 Farm Bill as evidence that “phytocannabinoids from hemp are legal to produce and ship across state lines.” (That statement directly contradicts what the DEA told me.)
Payne said that any future changes to how CBD is classified (for example, changing it to a medicinal drug, which is not how marijuana is currently classified), would happen either through the formal scheduling process, which involves research and analysis by both the DEA and the FDA, or through legislation passed by Congress. “We’re law enforcement, we’re cops,” he said. “People think we can waive a magic wand and legalize something.”
In a recent federal court case, a three-judge panel on the Ninth Circuit sided with the DEA and ruled against the Hemp Industries Association after the agency established a new drug code for “marihuana extract” in 2016. The ruling means that CBD remains a controlled substance. Garrett Graff, the attorney representing the hemp industry in the case, told me that the court opinion did make an exception for Farm Bill hemp, and that it was “not subject to DEA authority,” he said.
“The issue before this court was whether there was a conflict between the Farm Bill and the DEA’s establishment of a new drug code for marijuana extract,” he went on. “The court found that the two can coexist, but when there is a conflict, the Farm Bill wins. That is yet another arrow in our quiver as the hemp industry.”
DEA actions have caused “somewhat of a chill in the industry,” said Miller. Not that he's too worried. “The fact of the matter is, (the DEA) have not done any enforcement actions and we believe they never will,” he said. “The instant that the DEA ever seizes a product that was sold on a shelf somewhere that was a Farm Bill product, the next day, we’re going to be in federal court suing them.”
The plaintiffs in the recent case (Brubeck is one of them), plan to appeal. But they might not have to.
Relief may come in an unexpected form: Mitch McConnell. The Republican Senate majority leader has introduced new legislation, the Hemp Farming Act of 2018, which would remove hemp from the DEA’s Controlled Substances Act (CSA). It also would allow for commerce, which clears up the confusion and varying interpretations of the 2014 Farm Bill. A vote is slated for this fall.
“He and I agree on nothing else except this,” Miller said of McConnell. “But he has been phenomenal for the industry. If we do get this passed, which we think we will, we will have gone from hemp being treated as marijuana nationally in 2013 to it being completely legal in 2018.”
“Our biggest challenge,” added Miller, “is educating people on the difference between hemp and marijuana.” He credits McConnell for helping to change the stigma. In Kentucky, where Miller lives, the hemp pilot program has created jobs and helped farmers who used to be in the tobacco business. “The same kind of soil you grow hemp in, you grow tobacco in,” Miller said. “We are now taking an economic opportunity and giving it to people who were producing a product that was, frankly, killing people, now to a product that is helping people.”
The next big challenge, provided the new bill passes, will be regulation, which leaders in the industry hope they’ll be able to do themselves. Miller told me they’re setting up a self-regulating organization, like other agriculture commodities have, to set best-practice standards and uniform quality control. “This will give consumers assurance that the product is safe, and it gives law enforcement assurance that the product’s legal,” he said.
There are concerns that a handful of less-than-reputable companies are tarnishing the industry as a whole. For years, the FDA has been sending warning letters to companies selling CBD while making unsubstantiated health claims. According to the FDA, one company had claimed on its website, “Scientific research by doctors have shown it (CBD) actually kills cancer cells and provides a protective coating around our brain cells.”
There have been some small studies on the benefits of CBD, new trials are underway, and the FDA recently approved the first CBD drug (it treats epilepsy). Still, CBD’s popularity has clearly surpassed the actual science. But even the DEA sounds optimistic.
“I will say this—there have been some really promising breakthroughs on CBA as a medicine potentially,” said Payne. “I would certainly stay tuned. This is what we want—good science. You want to make sure the right people are making science-based decisions. Not political decisions and fingers in the wind.”
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Cole Kazdin is a writer living in Los Angeles.
