CBD Has Gone Mainstream Despite Federal Prohibition

CBD has gone mainstream – and this is nullification in action.

If there was ever any doubt, it completely vanished last month when Consumer Reports ran an article titled “How to Shop for CBD.” You don’t get much more mainstream than Consumer Reports.

Cannabidiol (CBD) is derived from cannabis – generally in the form of industrial hemp. It has proven effective in treating a number of medical conditions, including seizures, pain and anxiety.

Articles touting CBD have appeared in the mainstream media. For instance, the Washington Post called it “the new ‘it’ drug.” And a recent CNN article called CBD, “The latest ‘it’ ingredient to hit menus.” The report went on to tell us where we can get CBD infused food and drink

“From a sleek, wellness compound in Miami to a Portland dive bar known for late-night hot dogs, here are the coolest spots to find CBD on the menu.”

As Consumer Reports points out, people looking to buy CBD products face a dizzying array of choices. They can already find thousands of CBD products online, in retail stores, and even in restaurants across the United States.

“And those choices are soon likely to become even more confusing: The CBD market is expected to multiply at least sevenfold by 2021, to $2.15 billion, up from $292 million in 2016, according to the Brightfield Group, a market research firm that specializes in cannabis. Even Coca-Cola says it’s ‘closely watching’ the growing interest in CBD and its potential as an ingredient in some of the company’s beverages.”

Now for the plot twist.

Federal law prohibits all of this.

Many people mistakenly believe CBD is legal. In fact, Consumer Reports claims “47 states have now legalized CBD from hemp, marijuana, or both.” The only holdouts according to CR: Idaho, South Dakota and Nebraska. But the feds beg to differ. In fact, the DEA considers CBD a schedule 1 drug, and as such, illegal in every state. The only exception — a CBD drug called Epidiolex approved by the FDA June 27, 2018, to treat seizures in a rare form of epilepsy, and only with a prescription.

People in the cannabis industry who argue that CBD is legal over the counter generally rely on the “hemp amendment” tacked onto the 2014 farm bill. But the law only legalized hemp production for limited purposes. It “allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oilseed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.”

In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the farm bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”

In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

The definition of “commercial” remains murky and has created significant confusion.

The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention CBD oil or other edible hemp products. The DEA has interpreted that to mean CBD and hemp food products remain illegal. According to the DEA, CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne, who reiterated the agency’s position.

“It’s not legal. It’s just not.”

Payne says cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the Agricultural Act of 2014 (better known as the “Farm Bill”) is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research — not CBD marketing and sales.

“Anybody who’s in violation [of the federal laws] always runs that risk of arrest and prosecution,” he said.

Another DEA spokesman told the Louisville Courier-Journal“All hemp products that can be consumed are illegal.”

Nevertheless, people across the country are selling, buying and using CBD, and nullifying the federal law in practice and effect. Consumer Reports even offers “a step-by-step guide to the factors to consider when shopping for a CBD product.”

And the feds aren’t doing anything about it. Even DEA spokesman Payne admitted the agency isn’t enforcing federal law. The WTHR reporter asked him what he would do if he was in the position of a mother who found CBD helped her child deal with excruciating pain related to cancer treatment. He said he would do the same exact thing — without hesitation.

“I cannot blame these people for what they’re doing. They are not a priority for us … it would not be an appropriate use of federal resources to go after a mother because her child has epileptic seizures and has found something that can help and has helped. Are they breaking the law? Yes, they are. Are we going to break her door down? Absolutely not. And I don’t think she’ll be charged by any U.S. Attorney.”

As Forbes article put it, “at the end of the day, CBD is not legal in all 50 states — even though it is widely available.”

About Tenth Amendment Center
The Tenth Amendment Center is a national think tank that works to preserve and protect the principles of strictly limited government through information, education, and activism. The center serves as a forum for the study and exploration of state and individual sovereignty issues, focusing primarily on the decentralization of federal government power as required by the Constitution. For more information visit the Tenth Amendment Center Blog.

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