Authored By: Marc J. Ross, Esq.
Cannabidiol (CBD) is a naturally-occurring cannabinoid compound found in both cannabis and hemp. Its molecular formula is C 21 H 30 O 2 . Unlike THC, CBD does not have any psychoactive properties. The concentrations of THC and CBD vary greatly between cannabis and hemp, since “industrial hemp” will have a THC concentration of less than 0.3 percent.
The substance was first isolated from cannabis in the 1940’s, but an understanding of the compound and its potential medicinal effects didn’t come about for several decades. According to the World Health Organization (WHO), CBD exhibits no effects to indicate the potential for abuse or dependence. 1 However, recent studies have shown that CBD may have therapeutic benefits for the treatment of certain conditions and diseases, such as Parkinson’s, Multiple Sclerosis, arthritis, and cancer. 2 The medicinal use of CBD that, arguably, has gained the most public attention is for its treatment of epilepsy. 3 In fact, in July of 2018, the FDA approved Epidolex, which has CBD as an active ingredient, for the treatment of Lennox-Gastaut syndrome and Dravet syndrome, two rare genetic epilepsy conditions. 4
Hemp, and CBD by association, were outlawed in the Marihuana Tax Act of 1937, and decades later declared a Schedule I drug. However, the Agriculture Improvement Act of 2018, otherwise known as the 2018 Farm Bill, removed hemp from Schedule I status and shifting the regulation of hemp from the DEA to the USDA. 5 This new classification of hemp is an expansion of the 2014 Farm Bill, which permitted the cultivation of hemp, on a strictly limited basis, for research purposes. 6 While production of hemp is now regulated by the USDA, the FDA maintains control over the regulation of products that contain CBD.
However, when regulating CBD, one issue is that despite the new classification of hemp under the 2018 Farm Bill, the FDA does not make any distinction between the source of the CBD (hemp or cannabis) when regulating CBD products. Since cannabis and THC are still Schedule I drugs, and cannabis and hemp can appear to be indistinguishable, this can make the enforcement of the Controlled Substances Act and the Food, Drug, and Cosmetic Act both confusing and difficult. 7 In addition, the FDA continues to prohibit the use of CBD in food and other dietary products under the Food, Drug, and Cosmetic Act. 8This has caused some confusion, as bars and restaurants across the country believed that the passage of the 2018 Farm Bill meant that they had free reign to introduce CBD into various food products. 9
Another issue is that while CBD is now removed from Schedule I status at the federal level, several states still declare CBD as an illegal drug. 10 For cannabis- and hemp-basedcompanies that operate in multiple states, this could make transportation of product from one state to another costly and more difficult. 11 Moreover, since hemp still contains minute amounts of THC, it can still be detected by “my drug-sniffing dog, Rover” 12 and thus be subject to confiscation under the controlled substances act. 13
In sum, while CBD is no longer regulated under the Controlled Substances Act, there are still discrepancies in the ways it is regulated at both the federal and state level. On the federal level, while cultivation of hemp is legal and regulated by the USDA, the use of CBD in both food and medicine is regulated by the FDA. In addition, like THC and cannabis, different states treat hemp and CBD differently in terms of legalization. The dust has yet to really “settle” with the passage of the 2018 Farm Bill, so these differences will hopefully be ironed out in the near future.
1 Expert Committee on Drug Dependence 39 th Meeting, Cannabidiol (CBD) Pre-Review Report, WORLD HEALTH ORGANIZATION at 14 (2017) (available at https://www.who.int/medicines/access/controlled-substances/5.2_CBD.pdf).
2 Id. at 18.
3 Id. at 15-17.
4 FDA approves first drug comprised of an active ingredient derived from marijuana to treat rare, severe forms of epilepsy, FOOD AND DRUG ADMINISTRATION (June 25, 2018) (available at https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm).
5 Hall Render Killian Heath & Lyman P.C., FDA Clarifies Position on CBD After Passage of 2018 Farm Bill, LEXOLOGY (January 18, 2019) (available at https://www.lexology.com/library/detail.aspx?g=9eaecadc-6574-4c84-
7 See Paul P. Murphy, Police Seize Almost 7,000 Pounds of Cannabis from a Truck. But the Company That Bought is Says it’s All Legal, CNN (February 7, 2019) (available at https://www.cnn.com/2019/02/06/us/hemp-marijuana-idaho-trnd/index.html).
8 See Hall Render Killian Heath & Lyman P.C., supra note 5.
9 Robert Allen, Officials Order Metro Detroit Businesses to Pull CBD-infused food, drinks off menus, THE DETROIT FREE PRESS (February 17, 2019) (available at https://www.freep.com/story/news/local/michigan/2019/02/17/health-officials-order-detroit-businesses-pull-cbd-off-menus/2869666002/); Jane Wester, That Trendy CBD Product in Your Smoothie? Adding it is Illegal, NC Officials Say, THE CHARLOTTE OBSERVER (February 15, 2019) (available at https://www.charlotteobserver.com/news/local/crime/article226150860.html); Angelica LaVito & Thomas Franck, New York City Plans to Start Fining Restaurants that Use CBD in Food and Drinks, CNBC (February 15, 2019) (available at https://www.cnbc.com/2019/02/15/new-york-may-start-fining-restaurants-for-using-weed-related-cbd-.html).
10 Mitch Mitchell, CBD Oil is Basically Illegal in Texas, So Why Can You Find it for Sale Here?, THE STAR-TELEGRAM (February 7, 2019) (available at https://www.star-telegram.com/news/local/community/fort-worth/article225554495.html); Kamila Kudelska, CBD is Illegal in Wyoming. Will Industrial Hemp Help Change That?, WYOMING PUBLIC MEDIA (February 7, 2019) (available at https://www.wyomingpublicmedia.org/post/cbd-
11 See Paul P. Murphy, supra note 7.
12 See Fred Klein, Class Discussion, Criminal Procedure I, HOFSTRA LAW SCHOOL (February 14, 2019).
13 See Paul P. Murphy, supra note 7.
Marc J. Ross, Esq. Sichenzia Ross Ference LLP 1185 Avenue of the Americas, 37th Floor New York, NY 10036
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