By Tom Hagy
July 16, 2018

Proponents say the medical benefits are many and magnificent.

You can feel better without feeling stoned.  While that will be disappointing to some, people enduring a variety of ailments may find relief, proponents and some studies say. From inflammation to pain to anxiety. From arthritis to alcoholism to diabetes. From psychoses to seizures. Cannabidiol may cure what ails you. And in many cases the science is there, even studies sponsored by the government, say the folks at Project CBD.

While the regulations vary from state to state, and the definitions can be confusing, clarity is coming for at least the hemp-derived variety of products – as opposed to its sister cannabis plant, marijuana – with the likely passage of Senate Majority Leader Mitch McConnell’s Hemp Farm Bill. The measure is also noteworthy because it has drawn rare bipartisan support.

CBD can be found in just about anything, from skin care products to pain medications to anti-seizure drugs—even beer. Companies, including large retailers, like Target, have tried to sell or are selling products containing CBD online or across state lines.

While small compared to the marijuana industry, CBD is on a serious growth trajectory.

“Spending on legal cannabis worldwide is expected to hit $57 billion by 2027,” according to an article at Forbes.com, written by Thomas Pellechia, citing the research of Arcview Market Research and BDS Analytics. “The largest group of cannabis buyers will be in North America, going from $9.2 billion in 2017 to $47.3 billion a decade later.”

In a release from MarketNewsUpdates.com, “A new report by cannabis/legal marijuana market analysts firm Hemp Business Journal projects that the U.S. CBD market will grow to $2.1 billion by 2020, an astronomical jump in value compared to last year’s CBD market of $202 million. As the market continues to swell, it is expected the space will reach the billion-dollar status as product diversification and global demand drive revenue levels. One of the major drivers for the CBD market is the growing list of health benefits of CBD oil.”

Proceed with Caution

In his post for the Canna Law Blog – a must-follow for any attorney or company interested in the legal aspects of cannabis – attorney Daniel Shortt of Harris Bricken tells businesses they must know the rules.

“It is no secret that CBD is having a moment right now. Unlike its cousin tetrahydrocannabinol (THC), which is another cannabinoid found in the cannabis plant, CBD is not psychoactive. It has been growing in popularity for years for medical and other applications, but has really taken off lately.”

Shortt offered five questions businesses must ask before diving in. Here is a truncated version of that list:

1. What is the source of the CBD? Is it coming from a licensed source? Is it derived from industrial hemp?

2. What do the lab tests say? You must be sure the products do not contain THC (or more than .3%).

3. Where is the CBD going to be sold? State laws vary and if you violate them you could face criminal sanctions. Read more here: https://www.cannalawblog.com/industrial-hemp-dont-forget-about-state-law/

4. What claims are you making about CBD? Are you claiming the product treats disease? You don’t want to make health claims or allow others to make them via testimonials on your website, for example.

5. Has the law changed? You must keep up with federal and state laws.

Read more.

Writing for the online news service CBD Origin, Aaron Cadena echoes Shortt’s first point, saying legality of CBD has to do with its origin. Does it come from hemp or does it come from marijuana?  “[B]oth are members of the cannabis family,” Cadena writes, “so they do share a lot of characteristics. There is, however, a crucial difference between the two–the amount of psychoactive THC each plant produces …. In other words, marijuana can get you really high, while hemp has such a low amount of THC, that it would be impossible to get high off it.”

“Botanically speaking, there’s not a shred of difference between the two plants: Both are cannabis Sativa under the Linnean definition*,” writes Chris Roberts for Leafly.com. “Legally speaking, the two do indeed have a binary difference: One is federally legal, and the other is not.” (* Named for Swedish botanist Carolus Linnaeus or his modern system of botany and zoology. Who knew.)

It is because of these psychoactive differences that CBD taken from hemp – with no such effects – is legal almost everywhere in the U.S., while the legality of marijuana-derived products is a mixed bag.

Cadena’s article includes a survey of the various state laws regulating both forms of CBD. Read the full article to see which 46 states have legalized CBD with a prescription, the 17 that have specific legislation for THC levels and which conditions it’s to be used for, and the 29 states that have fully legalized medical use of both forms of CBD.

ProCon.org offered another survey, current as of May 8, 2018, providing summaries of the law in each state. The organization commented that “we do not consider passing a CBD-specific law to be the equivalent of making medical marijuana legal because these laws do not recognize the use of marijuana plant for medical purposes.” (For their survey of medical marijuana states, go here: https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.)

The Hoosiers Take the Lead

Right now, Indiana has “the most robust regulations of hemp-derived CBD products.”  In his post for the Canna Law Blog, Shortt wrote that, as of March 21, 2018, the state allows the distribution and retail sale of “low-THC hemp extract,” defined as a product “(1) derived from Cannabis sativa L. that meets the definition of industrial hemp; (2) that contains not more than 0.3% delta-9-THC (including precursors); and (3) that contains no other controlled substances.”

This is interesting, Shortt says, because it shows that Indiana is officially aware of CBD products and decided to allow their sale. “The catch is that those sales are restricted to a certain class of CBD products, and they are heavily regulated,” he says.

The list of labeling requirements will be a challenge for companies distributing across state lines. Some will not be selling in Indiana and others will comply, Shortt predicts.

“Indiana is unique in the sense that it allows CBD and also regulates its sale so robustly. Let’s hope for more positive cannabis developments in the Hoosier State,” Shortt writes.

Shortly after the Ninth Circuit’s CBD ruling, on May 22, 2018, the DEA issued an internal directive regarding products derived from cannabis but are not marijuana. They referenced an earlier Ninth Circuit ruling from 2004 which enjoined the DEA from enforcing certain THC regulations  (See Hemp Industries Ass’n v. DEA, 357 F.3d 1012 (9th Cir. 2004)).”

Responding to various inquires, the DEA issued the following to agency personnel:  

“Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.”

“[A]ny product that the U.S. Customs and Border Protection determines to be made from the cannabis plant but which falls outside the CSA definition of marijuana may be imported into the United States without restriction under the Controlled Substances Import and Export Act. The same considerations apply to exports of such products from the United States, provided further that it is lawful to import such products under the laws of the country of destination.”

The DEA explained, though, that its statements regarding the drug code for marijuana extract and regarding resin remain the same. “[T]he drug code for marijuana extract extends no further than the CSA does, and it thus does not apply to materials outside the CSA definition of marijuana.”

Mona Zhang, writing for Forbes.com, said there are CBD producers who source their hemp from cultivators that operate under the Farm Bill. “But given how widespread these products are, it’s unlikely that all of them were sourced from research hemp. And state laws on CBD and hemp vary widely. Colorado, which legalized adult-use marijuana in 2012, has a robust industrial hemp program and is home to the first U.S.-bred certified hemp seed. But in Massachusetts, where you can now grow marijuana at home, it’s still a crime to grow hemp without a state license …”

If only someone would do something at the federal level.

Clarity on the Horizon?

Harris Bricken attorney Shortt notes that U.S. Senate Majority Leader Mitch McConnell – in an attempt to settle the CBD matter – introduced a bill to legalize hemp on the federal level, an initiative that is getting rare bipartisan support: the Hemp Farming Act of 2018 or S.2667.

Shortt said that, while subject to change, hemp would be defined as: “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-0 [THC] concentration of not more than 0.3 percent on a dry weight basis.”

“This proposed definition is significant,” Shortt writes, “because it specifically includes the term ‘extracts,’ thereby undermining the DEA’s much-maligned ‘marihuana extract’ rule, which broadly defines any extract from the cannabis plant as ‘marijuana’ and not hemp. The proposed ‘hemp’ definition also includes ‘cannabinoids’ contained in hemp which could add much needed legal certainty to the already booming CBD market. The Act would also explicitly remove hemp from the Controlled Substances Act’s definition of marijuana.”

Jason Amatucci, co-founder of CBD producer Anavii Market, said the Hemp Farming Act has bi-partisan support and has a “decent chance of actually getting signed into law this year.”

“It’s time the federal government changes the way it looks at hemp,” Sen. McConnell said when he announced the measure, adding, it will “modernize federal law in this area and empower American farmers to explore this promising new market.”

“The future of the legal American hemp derived CBD oil industry looks very bright even though some folks are still confused about the legality nuances. This new law will even further solidify the legality and legitimacy of the hemp derived CBD industry,” Amatucci says.

Sidebar: Marihuana?

For the etymology nerds out there, like me, Washington Post writer Christopher Ingraham wrote a piece on the DEA’s insistence on spelling marijuana with an “h” instead of a “j” – something this one-time Spanish student found jarring. I imagine actual Spanish-speaking people would say something like, “Yeah, we have bigger things to worry about,” except in Spanish. Ingraham uncovers some surprising theories but little hope for change. Read it now.

It’s ironic, I suppose, that the only letter the government is avoiding is the letter “j,” as in “jay” for joint.  Maybe that’s the real reason for their spelling.