Education

In December of 2018, Congress passed the $867 billion 2018 Farm Bill, or Agriculture Improvement Act of 2018,” which provides important agricultural extensions, farm subsidies, nutritional policy, subsidies and crop insurance for the next five years. More importantly, the bill includes drastic changes in hemp legislation.

The bill legalizes industrial hemp, a form of cannabis with lower tetrahydrocannabinol (THC) levels than marijuana and the source of the ingredient cannabidiol (CBD). It allows industrial hemp and its component parts – such as CBD and other cannabinoids – to be processed, transported to, and sold in all 50 states.

Hemp is defined in the new legislation as the cannabis plant (yes, the same one that produces marijuana) with one key difference: hemp cannot contain more than 0.3 percent of THC (the compound in the plant most commonly associated with getting a person high).

For decades, federal law did not differentiate hemp from other cannabis plants, all of which were effectively made illegal in 1937 under the Marihuana Tax Act and formally made illegal in 1970 under the Controlled Substances Act—the latter banned cannabis of any kind.

This is a monumental victory for the U.S. hemp industry, from fiber production for commercial use to CBD products for medical purposes.

• One of the goals of the 2014 U.S. Farm Bill was to generate and protect research into hemp. In that bill, a small section — tucked deep inside — called “Legitimacy of Industrial Hemp Research” legalized hemp in two important ways.

  The 2014 bill carved out an exception to the Controlled Substance Act’s definition of “cannabis” for what it terms “industrial hemp.” Industrial hemp was (and still is) defined as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a [THC] concentration of not more than 0.3 percent on a dry weight basis.”

  That year’s bill also allowed a State’s Department of Agriculture to grow or cultivate industrial hemp if it was grown or cultivated “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and if the growing or cultivating of industrial hemp was “allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.” Since then, at least 35 states took up the offer and developed industrial hemp programs.

  The new 2018 Farm Bill continues this research effort. Section 7605 of the 2018 Farm Bill re-extends the protections for hemp research and the conditions under which such research can and should be conducted. Section 7501 of the 2018 Farm Bill extends hemp research by including hemp under the Critical Agricultural Materials Act. This provision recognizes the importance, diversity, and opportunity of the plant and the products that can be derived from it, but also recognizes an important point: there is a still a lot to learn about hemp and its products from commercial and market perspectives.

  Several provisions of the 2018 Farm Bill include changes to existing provisions of agricultural law to include hemp. The new bill now treats hemp like other agricultural commodities in many ways. Hemp farmers will now be treated like other farmers. While these provisions heavily regulate hemp, the new 2018 legislation essentially makes hemp a mainstream crop. 

  In addition to lifting many previous restrictions from the 2014 bill, the 2018 Farm Bill essentially:

  • Allows hemp production in all 50 states for any use, including flower production and CBD or other cannabinoid extraction. States will have the option to submit their own plans to regulate hemp.
  • Spells out that licensed hemp producers who grow cannabis plants that exceed the THC limitation of 0.3% will not be guilty of a drug crime but instead must submit a plan to correct the “hot” hemp.
  • Allows interstate commerce for hemp and hemp-derived CBD.
  • Gives the U.S. Department of Agriculture (USDA) the job of overseeing hemp production, with direction to come up with rules “as expeditiously as practicable.”
  • Legalizes hemp production in U.S. territories and on Indian tribal land – which was not included under the 2014 Farm Bill.
  • Gives the industry access to federally backed farm support programs, including crop insurance, federal water access and low-interest loans for new farmers.
  • Allows hemp producers to “bring foreign nationals to the United States to fill “temporary agricultural jobs.”
  • Removes barriers to getting intellectual property protections under federal law, such as patents and trademarks.
  • Sets a 10-year ban under which state or federal drug felons cannot participate in the hemp program, except for people already growing hemp under a state pilot project (as established by the 2014 Farm Bill).
  • Requires the USDA to consult with the U.S. attorney general on the hemp rules.

  We still have other problems and hurdles to face, but the era of hemp prohibition is over. Hemp is now permanently removed from the Controlled Substances Act (CSA). It is forever deemed an agricultural commodity, no longer mistaken as a controlled substance, like marijuana.

By redefining hemp to include its “extracts, cannabinoids and derivatives,” Congress explicitly has removed popular hemp products — such as hemp-derived CBD — from the purview of the Controlled Substances Act. Accordingly, the Drug Enforcement Administration (DEA) no longer has any possible claim to interfere with the interstate commerce of hemp products.

So, yes, CBD is now legal—but under specific circumstances and with restrictions. First, as noted above, hemp cannot contain more than 0.3 percent THC, per section 10113 of the Farm Bill. Any cannabis plant that contains more than 0.3 percent THC would be considered non-hemp cannabis—or marijuana—under federal law and would thus face no legal protection under this new legislation.

Second, there will be significant, shared state-federal regulatory power over hemp cultivation and production. Under section 10113 of the Farm Bill, state departments of agriculture must consult with the state’s governor and chief law enforcement officer to devise a plan that must be submitted to the Secretary of USDA. A state’s plan to license and regulate hemp can only commence once the Secretary of USDA approves that state’s plan.

In states opting not to devise a hemp regulatory program, USDA will construct a regulatory program under which hemp cultivators in those states must apply for licenses and comply with a federally-run program. This system of shared regulatory programming is similar to options states had in other policy areas such as health insurance marketplaces under ACA, or workplace safety plans under OSHA—both of which had federally-run systems for states opting not to set up their own systems.

Third, the law outlines actions that are considered violations of federal hemp law. It details possible punishments for such violations, pathways for violators to become compliant, and even which activities qualify as felonies under the law, such as repeated offenses.

CBD products produced from industrial hemp are no longer considered Schedule I substances. The DEA classifies CBD as illegal, although it doesn’t go after anyone using or possessing it, and it hasn’t said if it will reclassify CBD now that hemp is legal.

The Food and Drug Administration (FDA) has and will continue to exercise jurisdiction over the regulation of ingestible and topical hemp products (such as CBD) and still considers it a drug, therefore categorizing it as illegal to be put in foods and or health products without its approval.

After the hemp legalization bill passed, FDA Commissioner Scott Gottlieb issued a statement saying that the FDA’s opinions had not changed and that CBD companies must obtain approval from the FDA. The agency will continue to crack down on companies that undermine the industry through misguided marketing claims.

The 2018 Farm Bill now federally allows CBD to be be processed, transported to, and sold in all 50 states, including states that haven’t enacted industrial hemp laws pursuant to the Farm Bill. It allows states to decide if CBD products made from hemp can be sold in their jurisdiction.

CBD is now de-scheduled, and as long as you have a product produced using legal hemp, and that product is not marketed in a way that is making improper health claims, then yes, you can bring it with you on an airplane.

Marijuana (defined as plants with more than .03 percent THC) is still defined as a controlled substance and therefore illegal at the federal level. However, it is legal for recreational use in 10 states and Washington, D.C., and available for medical purposes in many other parts of the country.

The passing of the 2018 Farm Bill will certainly open new opportunities for research and development within the pharma industry. In fact, it’s already begun. In June 2018 the FDA approved a CBD-containing prescription drug from GW Pharmaceuticals for treating two rare seizure disorders that can be life-threatening in infants.