This article was originally published on Hoban Law Group, and appears here with permission.
Cannabidiol (or “CBD” for short) has gained immense popularity on the market in the U.S. and beyond over the last several years. CBD is just one of the many naturally-occurring phytocannabinoids found in the cannabis plant. Unlike THC (tetrahydrocannabinol), which is typically associated with causing a “high” in its users, CBD is non-psychoactive, which means the compound does not typically cause a high or euphoric effect in the user when consumed.
CBD in Both Marijuana and Hemp
Generally speaking, CBD can be found in both marijuana and hemp. Marijuana and hemp are both considered “cannabis” under the law, but prior to Congress passing the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”), which builds upon the Agricultural Act of 2014 (the “2014 Farm Bill”), the law did not distinguish between “marijuana” and “hemp.” Before this distinction was made, cannabis referred to both marijuana and hemp without any differentiation between the two.
Now, however, federal law expressly excludes “hemp” from the definition of “marijuana,” which means that cannabis with a THC concentration that does not exceed 0.3% is no longer viewed as “marijuana” under federal law. Instead, this class of cannabis is recognized as “hemp.”
The Difference Between Hemp CBD and Marijuana CBD
Accordingly, the difference between hemp CBD and marijuana CBD is dependent upon the levels of THC in the plant from which the CBD is derived. So, if the CBD is derived from cannabis with a concentration of 0.3% THC or less, the CBD is derived from hemp. But if the same compound is derived from cannabis with a concentration of more than 0.3% THC, the CBD is derived from marijuana.
Legally speaking, the difference between hemp CBD and marijuana CBD is based on the THC content of the plant. Practically speaking, however, the difference between hemp CBD and marijuana CBD is rooted in how these plants and products are regulated both federally and on the state level, which determines the regulations governing the cultivation, processing, manufacture, distribution and sale of such plants and products.
Unlike marijuana, hemp has been removed from the federal Controlled Substances Act, which means that hemp is no longer treated like marijuana under the law. Consequently, after passing both the 2014 and 2018 Farm Bills, the cultivation of hemp was legalized at the federal level. This federal legislation also generally protects the interstate transport of hemp and hemp products, which, in turn, is responsible for why you can find hemp-derived products for sale in numerous retail locations throughout the country today.
Marijuana, however, is still considered a “controlled substance” under federal law. This means that in order to cultivate, process, manufacture, distribute, sell and/or purchase or consume marijuana or marijuana-derived products (i.e., cannabis with a THC concentration that exceeds 0.3%), such as marijuana CBD products, state laws must permit these types of activities in contravention of federal law. In other words, marijuana does not enjoy the same federal protections as hemp now does pursuant to the passage of the 2014 and 2018 Farm Bills.
Federal Legalization of Hemp
Of course, with federal legalization of hemp comes federal regulation. For example, the Food & Drug Administration (“FDA”) does not generally regulate marijuana or marijuana-derived products, including those that contain CBD, because marijuana remains illegal at the federal level. However, the 2018 Farm Bill tasked the FDA with implementing a framework for hemp-derived cannabinoid products entering the stream of U.S. commerce while reiterating that the passage of the Farm Bills did not affect the Federal Food, Drug & Cosmetic Act (“FD&C Act”).
Accordingly, and in relying on select provisions of the FD&C Act, the FDA has opined on numerous occasions that CBD cannot be marketed as a dietary supplement or added as an ingredient to food and beverages sold to consumers. In addition, the FDA has emphasized that neither CBD nor any other cannabinoid has received “GRAS” (Generally Recognized As Safe) status to date, nor have such cannabinoids been the subject of an approved food additive petition or a New Dietary Ingredient (“NDI”) notification submitted to the FDA. Additionally, the FDA has initiated enforcement actions against hemp-derived CBD products marketed as “drugs” to the public (i.e., with statements indicating the product may affect the structure or function of the human body, or is intended to diagnose, treat, cure or prevent any disease).
So, what does this all mean?
On a practical level, this means that the cultivation, processing, manufacturing and sale of hemp and marijuana (and products derived therefrom) are subject to vastly different regulations due to the distinctions under federal law between hemp and marijuana.
If you have questions about how to cultivate, process, manufacture, distribute or sell either hemp-derived or marijuana-derived products containing CBD in compliance with applicable laws, our attorneys at HLG are here to help.
Please contact our office today for a consultation!
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