WRITTEN BY MILICA STOJSAVLJEVICK AND DR. SWATHI
The Agricultural Improvement Act of 2018, more commonly known as the 2018 Farm Bill, changed everything for the CBD industry in the United States. Read on to learn why.
What is the 2018 Farm Bill?
As the name states, in 2018 a law that was put into effect at the federal level that labeled hemp an agricultural crop instead of a controlled substance (1). This means that hemp, which includes CBD as a component of the plant, is not under the definition of marijuana anymore (2). Another component of the Farm Bill states that each state must determine a plan and process from the Secretary of United States Department of Agriculture (USDA) for hemp licensing and regulation (3). If a state does not come up with a plan, then the people hoping to cultivate hemp in that state would instead apply for licensing through a federal program (3). The piece of legislation stated that there are no set controls around the sale, transport (even over state lines), and possession of hemp-containing products as long as they follow the detailed rules. One of which establishes possible punishments for violating parts of the bill, such as cultivating without a license and producing hemp with higher than 0.3% THC content (3).
Why is the 2018 Farm Bill important?
Under the Nixon administration, cannabis was classified as federally illegal in the 1970 Controlled Substances Act (CSA). This included all forms of cannabis, including hemp (3). Now, thanks to the 2018 Farm Bill, hemp was removed from the CSA as long as it contains less than 0.3% THC–the cannabinoid infamous for its intoxicating or psychoactive effects.
Surprisingly, CBD is only legal “if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower” (3). Anything else is still considered a Schedule I substance and is considered to have no therapeutic value and is therefore illegal.
What is the difference between federal and state law?
Federal law affects the country as a whole, while state law pertains solely to that given state (4). There are many instances, including the legality of cannabis, that fall into a gray area where state law and federal law are not alignment. In some cases, according to the supremacy clause in Article VI of the Constitution, federal law always trumps state law if federal law is stricter (4).
As we now know hemp is legal federally and anything with greater than 0.3% THC is illegal, but, for example, if you go to a state in which cannabis is legal both medicinally and recreationally per state law, can you still get in trouble with federal? Short answer, it's possible, but not likely. One case in which you could be charged is if you cross state lines in possession of cannabis (containing >0.3% THC) as it is federally illegal to do so.
Where is CBD currently illegal?
As of January 2022, Nebraska is the only state remaining in which it illegal to consume cannabis medicinally or recreationally. In nearly seven states, it is is illegal to consume recreationally. In all other states, CBD is either fully legal or legal with restrictions (1). The states where CBD is legal with NO restrictions are: Alabama, Hawaii, Illinois, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Tennessee, Virginia, and Wyoming (1). The states not mentioned have some sort of restriction with most of them being food/beverage related. Check your local government website to see the most updated information in your state.
- Barcott B. Is CBD legal in your state? check this chart to find out. Leafly. https://www.leafly.com/news/politics/is-cbd-legal-state. Published July 28, 2020. Accessed December 13, 2021.
- Abernethy A. Hemp production and the 2018 farm bill. U.S. Food and Drug Administration. https://www.fda.gov/news-events/congressional-testimony/hemp-production-and-2018-farm-bill-07252019. Published July 25, 2019. Accessed December 13, 2021.
- Hudak J. The farm bill, hemp legalization and the status of CBD: An Explainer. Brookings. https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/. Published December 13, 2018. Accessed December 13, 2021.
- Daunt L. State vs. federal law: Who really holds the Trump Card? HuffPost. https://www.huffpost.com/entry/state-vs-federal-law-who-_b_4676579. Published March 30, 2014. Accessed December 13, 2021.
This article was edited by Dr. Swathi and was written by Element Apothec Scientific Communications Intern, Milica Stojsavljevic. She is a Doctor of Pharmacy (PharmD) student at Concordia University Wisconsin School of Pharmacy in Mequon, Wisconsin.