Will the new US Farm Bill Make CBD Legal? An Attorney Forecasts the Future of Hemp.


Will the new US Farm Bill Make CBD Legal? An Attorney Forecasts the Future of Hemp.

Whether you live in a cannabis-legal state or not, today you can find stores selling cannabidiol (CBD) in most cities. Recently, during a panel discussion I participated in regarding CBD at the Cannabis World Congress and Business Expo in Los Angeles, we opened with a question to the audience: how many people believe that it is federally legal to produce, sell, or buy CBD products? Not surprisingly more than half of the audience raised their hands. Despite the appearance of legality, CBD products remain a Schedule I drug under the Controlled Substances Act (CSA).


Today, stores can be found all over the country selling CBD products at an ever-increasing rate, which leads consumers to believe that the stores are operating legally. If not, wouldn’t the government shut them down? Further confusing consumers is the recent decision by the Drug Enforcement Administration (DEA) to reschedule the CBD-based drug Epidiolex.  


Unfortunately, neither the rescheduling of Epidiolex nor the widespread opening of CBD stores impacts the illegality of CBD. Whether CBD is derived from industrial hemp or THC-producing cannabis, the DEA makes no distinction. In 2016, the DEA promulgated a regulation stating that the term “marihuana extract” means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis….” Because industrial hemp and THC-producing cannabis both come from the plant Cannabis sativa L., the impact of the DEA’s definition was to class all extracted CBD as an illegal extract from marijuana. Thus, regardless of the source of the CBD, the DEA still treats the cannabinoid as a Schedule I drug under the CSA.


Similarly, Epidiolex’s rescheduling to Schedule V by the DEA’s has no impact on any other form of CBD. In the DEA’s order of rescheduling, it stated that “this order places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols in schedule V.” The order is very narrow in scope because the order only impacts “FDA-approved drugs” containing CBD. Currently, Epidiolex is the only drug fitting this description and, therefore, is the only form of CBD that has been removed from Schedule I.


Even though CBD outside of Epidiolex remains illegal, that may not be the case for much longer. This is because the final 2018 Farm Bill likely will include language overriding the DEA’s 2016 regulation by making all extracts of CBD from industrial hemp legal. Specifically, the Senate version of the legislation amends the CSA to excluded from the definition of “marihuana” all extracts and cannabinoids from the plant Cannabis sativa L. that have a THC content of 0.3 percent or less.


The language is not currently included in the House version of the bill, but longtime cannabis opponent Pete Sessions (R-Texas), who chairs the House Rules Committee, has assured members of his own party that House leadership plans to include the Senate language on industrial hemp and extracts. The Farm Bill is slated for negotiation between the House and Senate when both chambers return from recess. The legislation was initially scheduled for an earlier negotiating session, but talks stalled due to provisions in the House bill unrelated to hemp.


The timing of the Farm Bill’s passage depends heavily upon the upcoming election. Should Democrats take back the majority in the House, it is possible that they will delay passage of the Farm Bill until the next Congress, which convenes in January, when Democrats will be able to change many of the more controversial provisions included in the current House bill. However, if Republicans can maintain control of the House, it is likely that the Farm Bill negotiations will result in passage prior to the end of the year. Either way, CBD legalization is near.