Hemp including CBD and other hemp-derivatives will be legal under the new Farm Bill – but better FDA guidance is needed

The current Farm Bill (the Agricultural Improvement Act of 2018) contains provisions supported by Senator McConnell regarding CBD derived from industrial hemp that will foster some much needed consensus for treatment of CBD by stating that certain hemp derivatives are legal rather than the current  patchwork of state regulations, guidances, and attorney general warnings.

The changes are important steps in bringing about CBD products, and while they don’t address how the FDA should treat and address the new products authorized as derivatives from hemp, they do bring hemp into the realm of a tolerated government agricultural and consumer product.

Under the current version of the bill:

(A) industrial hemp is removed from the Controlled Substances Act’s list of illegal drugs (this is important because you’ll remember that the 2014 Farm Bill did not remove hemp from that list when it promoted pilot programs for hemp crops);

(B) the definition of hemp is expanded to include the derivatives like CBD:

“(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”;

(C) authorizes the issuance of crop insurance for hemp; and

(D) leaves the power to authorize hemp farming to the states.

Removing CBD from the CSA is a big step and should be the last one in getting the DEA to reverse itself as it’s often maintained that the 2014 Farm Bill didn’t authorize commercial use but that still leaves the FDA, which is the major hurdle for commercial implementation as the FDA will need to offer some clear guidance on whether it plans to keep with its treatment of CBD as a drug or whether supplement status is possible – which could lead to broad authority to add them to food and other products – and whether derivatives like CBD can be treated as GRAS or will fall outside the category.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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