On December 20th 2018, hemp became a legal crop after nearly 50 years as a Schedule I controlled substance under the Federal Controlled Substance Act (CSA). At the urging of Senate Majority Leader Mitch McConnell (R-KY), President Donald Trump and Congress just legalized hemp. The 2018 Farm Bill, which includes the Hemp Farming Act of 2018, allows for hemp cultivation on a large scale. It also allows for hemp-derived products to be sold across state lines as an agricultural good like dairy, grain or meat.

The Difference Between Marijuana, Hemp, and CBD

While hemp and marijuana are related as members of the Cannabis sativa family, they have different biological characteristics. Notably, hemp only contains negligible amounts of the psychoactive component tetrahydrocannabinol (THC). This is important to federal legislators because it means that hemp cannot get someone high. Instead, hemp is typically used for its fiber to make a variety of products including apparel, beauty products, cardboard, carpets, clothes, food, paper, rope and more.

The 2018 Farm Bill defines hemp 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-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 

Hemp is a versatile crop—it can grow nearly anywhere in the world, in many types of soils, in dry regions or short growing seasons. It also helps purify the soil and kill certain types of weeds. Hemp is also a high-yield crop. It can produce twice as much oil as one acre of peanuts and four times as much fiber pulp for paper as an acre of trees. Because hemp has the strongest (and longest) plant fiber in the world, products made from hemp are resistant to rot and abrasion. Before hemp effectively became illegal under the 1937 under the Marihuana Tax Act, it was commonly used for baggage, ship rigging, parachute webbing, military uniforms and more. Hempcrete a composite material made with limestone and water can be used for home building, at 1/9th weight.

The U.S. hemp industry, in 2012, was valued at $500 million in annual retail sales and growing for all hemp products. By 2017, the value of the U.S. hemp industry grew to $820 million. With the historic 2018 Farm Bill, hemp production and consumption are expected to become a billion-dollar industries in the next few years.

Cannabidiol, or CBD, is a cannabis compound that has significant medical benefits but has only a very mild or no psychoactive effect for its users. CBD is being heavily studied—with government funding—as an option for patients seeking relief from a plethora of medical conditions and symptoms such as anxiety, arthritis, chronic pain, epilepsy, inflammation, multiple sclerosis and post-traumatic stress disorder. Some clinical research even shows that it can help reduce cancerous tumor growths. Today, there are a wide variety of CBD products including oils, supplements, lotions, teas, and vape products.

Implications of the Hemp Farming Act of 2018

The process of hemp legalization began when President Barak Obama signed the 2014 Farm Bill, which authorized state departments of agriculture and universities to research hemp under limited circumstances. However, there were many restrictions on these research programs because the crop was still considered a federally controlled substance during this pilot period. 

The 2014 Farm Bill limited the number of acres on which farmers could legally grow the plant, and required farmers seeking to participate in the program to obtain a waiver from the U.S. Drug Enforcement Administration. Additionally, farmers faced several barriers to growing hemp due to its status as a Schedule I controlled substance—including restricted access to banking, crop insurance and water rights. The 2018 Farm Bill removes these restrictions, putting the U.S. Department of Agriculture and state agencies in charge of regulating the industrial hemp industry. 

CBD is Legal Under Specific Circumstances

It is a myth that CBD is legalized under the 2018 Farm Bill. While it is true the section 12619 of the Farm Bill removes hemp-derived products from the list of Schedule I federally controlled substances, the legislation does not legalize CBD. And, the legality of CBD remains murky.

The 2018 Farm Bill—and a recent action by the U.S. Department of Justice—creates exceptions to the Schedule I status of CBD in specific situations. The Farm Bill ensures that any cannabinoid derived from hemp will be legal if the hemp is produced in a lawful manner. This means that the hemp must be produced in a manner consistent with the Farm Bill, associated federal regulations, state regulations and by a licensed grower. Cannabinoids produced in any other manner remain a Schedule I substance under federal law and are thus illegal.

The other exception to CBD’s status as controlled substance is pharmaceutical-grade CBD products that have been approved by the U.S. Food and Drug Administration. However, currently the list of approved pharmaceutical-grade CBD products includes one drug—GW Pharmaceutical’s Epidiolex. This medication is used in patients for the treatment of seizures in two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome. 

“This approval serves as a reminder that advancing sound development programs that properly evaluate active ingredients contained in marijuana can lead to important medical therapies. And, the FDA is committed to this kind of careful scientific research and drug development,” said FDA Commissioner Scott Gottlieb, M.D. 

The approval of the drug as a treatment for epilepsy shows that the FDA may soften its stance on cannabis-derived compounds, especially now that medical and scientific researchers may be able to obtain research-grade CBD more easily.