Signed into federal law, the Agriculture Improvement Act of 2018, better known as the 2018 Farm Bill, includes numerous programs and policy changes, not all of which are related to agriculture. Legalizing hemp had bipartisan support in both the House and Senate. Hemp is now out of reach of the Drug Enforcement Administration and, with a few notable exceptions, closer to being treated like any other crop. Legislators softened the most problematic clause in the amendment, which bans some people with felony drug convictions from participating in the hemp industry, during negotiations between the two chambers.
One remaining uncertainty is CBD oil, the massively popular healing supplement made from hemp. Now out of reach of the DEA, negotiations with the Food & Drug Administration over the supplement’s legality could be complicated. Under the 2018 Farm Bill, the return of legal hemp in the U.S. could bring massive benefits to the budding hemp industry, and legalizing hemp in the U.S. as a significant change for American agriculture itself.
INDUSTRIAL HEMP REMOVED FROM CONTROLLED SUBSTANCES ACT: Hemp in all its forms — whether used as food, medicine, or textile — represents one of the first crops domesticated by humans. The 2018 Farm Bill completely removes hemp and anything made from hemp from the Controlled Substances Act.
History has not been kind to hemp: The war on drugs brought about negative associations with psychoactive cannabis (“marijuana”) that spilled over onto hemp, marijuana’s close cousin. The result was decades of prohibition in the U.S., broken only for a brief period of hemp growing during World War II. In 2014, Pres. Barack Obama signed a previous version of the Farm Bill which partially legalized hemp under state-based research programs. In 2017, 19 states grew a total of 25,713 acres of hemp in the U.S. However, laws vary greatly even among hemp growing states. Most hemp is still imported, while a gray cloud of legal uncertainty hung over the industry due to ongoing policies tying hemp to federal drug prohibition.
Until now, the Drug Enforcement Administration argued that industrial hemp is virtually identical to psychoactive cannabis, and therefore a “Schedule I substance” under the Controlled Substances Act. Schedule I substances face the strictest penalties for use and are considered to have no benefit to humanity, despite the numerous benefits of all forms of cannabis. Advocates hope this will improve various policies that hurt the industry. Some vendors, especially those selling CBD oil, face legal threats. Hemp businesses routinely struggle to access banking, advertising, and other services.
LEGAL HEMP NOW UNDER USDA CONTROL: Regulation of hemp will now fall under the USDA, which will set national policies for the crop. The Farm Bill does allow states to set more restrictive regulations, including banning hemp growing. It also protects the rights of Native American tribes to grow, or not grow, hemp on their lands. However, neither tribes nor states can interfere with interstate commerce surrounding hemp.
The 2018 Farm Bill protects the rights of Native American tribes to grow hemp and prevents states from interfering with interstate commerce of hemp and hemp products. The definition of industrial hemp will remain unchanged from the 2014 Farm Bill. Only cannabis with less than 0.3 percent THC will qualify as legal industrial hemp. THC, the primary cannabinoid in psychoactive cannabis which makes people “feel high,” occurs in all forms of the plant but deficient levels in industrial hemp. Under current regulations, farmers must destroy the entire harvest if their hemp tests at 0.4 percent or higher. Though the Farm Bill is now law, legalizing hemp won’t happen overnight. Until the Department of Agriculture finalizes its hemp policies, the rules of the 2014 Farm Bill will continue to apply officially.
LEGAL HEMP INDUSTRY STILL FACES ‘TRAGICALLY UNFAIR’ FELONY BAN: The most controversial part of the hemp legalization amendment to the Farm Bill was a clause which banned people with felony drug convictions from participating in the industry. The legal hemp amendment initially passed by the Senate banned anyone with a felony drug conviction from participating in the hemp industry. People like Veronica Carpio, who has been a Colorado hemp grower since 2014 but also has a past psychoactive cannabis conviction, could have been forced out of an industry he helped to create.
Sen. Ron Wyden was a strong advocate for a compromise. But the felony ban remains in a modified form. Under the compromise, now incorporated into the final law, the felony ban exempts anyone already growing under a 2014 Farm Bill-compliant state hemp program. Additionally, anyone whose conviction took place more than ten years ago may grow hemp.
LEGAL HEMP BUT WHAT ABOUT LEGAL CBD OIL? The most popular application for hemp in the U.S. is CBD oil. CBD, or cannabidiol, has numerous benefits from easing symptoms of stress to reducing epileptic seizures. U.S. sales of CBD products reached $190 million in 2017. At the same time, the market is currently wholly unregulated, making it challenging for consumers to separate quality CBD products from snake oil. Hemp supporters argued that CBD products were protected by the 2014 Farm Bill and other legal precedents, but the DEA often disagreed. Though 2018 Farm Bill explicitly removes any product made from legal hemp from DEA oversight, the FDA regulates anything intended for human consumption. That includes CBD oil.
Under the Farm Bill, the FDA still has the complete authority that they do under the Food, Drug, and Cosmetic Act. So far, the FDA has limited itself to targeting CBD vendors that make illegal health claims about their products. The FDA classifies everyday CBD products as nutritional supplements and bans vendors from claiming hemp extract treats any health conditions.
WILL THE FOOD & DRUG ADMINISTRATION WEIGH IN ON CBD OIL? Many industry experts believe the FDA will face pressure to develop regulations around CBD products with the passage of the Farm Bill. Another factor is the recent approval of Epidiolex, a prescription epilepsy drug made from CBD derived from psychoactive cannabis. The approval of Epidiolex marks the first time the FDA officially recognized the medical value of cannabis. Still, some worry that it could lead to a crackdown on access to over-the-counter CBD supplements.
This is a complex and developing aspect of the 2018 Farm Bill and hemp legalization that we intend to cover in more depth in the future. Until then, CBD consumers should rest assured that their favorite supplement is likely to remain available. With CBD generating millions in profits and benefitting thousands of consumers, the FDA faces immense financial and popular pressure to keep this supplement available.
LEGAL HEMP IS A ‘WIN’ FOR PLANET EARTH: While CBD helps people feel better, and hemp can generate immense profits for both farmers and hemp companies, the benefits of legal hemp go deeper. Hemp can heal the soil, requires almost no pesticides and only moderate watering compared to other crops. Hemp fabric is a more sustainable alternative to cotton, and the woody core of industrial hemp plants can be made into hempcrete, a durable building material with numerous remarkable qualities.