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15.

CBD Law in the US.

As hemp-based products become ubiquitous across the country, the question of legality in the United States will remain pertinent. We’re here to provide some clarity on the current legal and regulatory environment surrounding CBD laws in the U.S. (spoiler: it’s complicated), as well as a look into the future of laws around hemp-based products in this country.

Why has CBD historically been outlawed in the United States?

There’s no specific prohibition of CBD production in American law. All prohibition has been based on laws surrounding hemp, from which CBD is derived. So, let’s start there.

Hemp production was first addressed in 1937[1] when a tax was placed on the commercial production of the hemp plant. This was superseded by prohibition through a series of federal laws passed in 1951[2], 1970[3], and 1986[4]. Despite directly addressing only one hemp by-product, these acts had the cumulative effect of outlawing any hemp derivative - including CBD. Without a solid legal foundation for the cultivation of hemp, legal CBD production remained impossible.

What is the current legal status of CBD in the U.S.?

To answer this, we need to start with hemp, and for that, we will start with the 2014 Farm Bill.

Under Section 7606 of the Agricultural Act of 2014[5], industrial hemp production was legalized for research purposes in certain states. The purpose of this legislation was to study the impact of the “growth, cultivation, and marketing of industrial hemp”[5]. The success of this program was such that the federal government began to move towards broader legalization of hemp production and cultivation. In arguing for this expansion, Senate Majority Leader Mitch McConnell (R-KY) pointed to “industrial hemp [as] a bright spot of agriculture’s future”. (It is important to note that hemp production remains tightly regulated, and requires significant consultation with state and federal governments.)

This legitimation of hemp production was codified in the 2018 Farm Bill, which greatly expanded the potential pool of hemp producers and provides previously non-existent legal security to hemp farmers[6]. However, the 2018 Farm Bill provided the framework necessary for future regulation, and carved out individual exceptions that would immediately legalize CBD production in very specific cases.

So is Hemp-derived CBD legal? Yes, the onus here is “hemp-derived.” Due to the removal of hemp from the list of prohibited substances and CBD from hemp having no psychoactive effects, the purchase, sales, and possession of hemp CBD products are completely legal on a federal level.

What will the next five years look like for CBD in the U.S.?

The biggest hurdle for CBD remains federal regulation. Specifically, eyes should be trained on the Food and Drug Administration (FDA). As the name suggests, the FDA regulates food and drug safety, and has the final say on which products are allowed to go to market. Scott Gottlieb, the outgoing head of the FDA, sounded a note of cautious optimism for CBD advocates when he said that “we recognize the potential opportunities that cannabis or cannabis-derived compounds could offer”, and committed to “pursuing an efficient regulatory framework” for product developers.

Regulatory guidance by the FDA will ultimately be what pushes CBD into the mainstream in the United States. The potential for CBD production continues to grow as the regulation on hemp cultivation broadens.

While it remains to be seen how much progress can be made in the coming months, expanding hemp production mixed with liberalizing public attitudes towards derivatives like CBD point to a very bright future for the CBD market in the United States.

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[1] Marihuana Tax Act of 1937

[2] Boggs Act of 1951

[3] Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970

[4] Anti-Drug Abuse Act of 1986

[5] Federal Register Document

[6] Brookings Article

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