Thanks to the Farm Bill of 2018, cannabidiol (CBD), a non-psychoactive cannabinoid lauded for its medicinal effects, is federally legal. Mostly.

The law authorized the cultivation of hemp, and hemp is rich in CBD content. As long as the CBD is derived from hemp grown in compliance with federal and state laws, it’s legal.  CBD obtained from cannabis plants containing more than .3 percent THC or that are cultivated outside of the bounds of the Farm Bill remain illegal.

The Farm Bill of 2018: The Key Changes

The Farm Bill of 2013 created the door to hemp legalization. The Farm Bill of 2018 opened it. Here are the ways that the 2018 legislation further legalized hemp and CBD:

Hemp cultivation is broadly legalized, not just through pilot programs. 

Hemp products can be carried across state lines. There are no special restrictions on the transportation, sale, and possession of hemp as long as the product came from hemp cultivated in compliance with the law—most importantly, that the plants contain no more than .3 percent THC.

Additionally, the federal government will play an important role in the regulation of each state’s hemp cultivation. Each state that plans to set up a regulatory system for hemp must have its department of agriculture receive approval from the Secretary of the US Department of Agriculture before implementing hemp regulation.  In states that have not developed a formal regulatory framework, hemp producers must apply for a federal license and comply with federal regulations.

Hemp farmers receive the same benefits as other farmers.

Prior to this law, hemp was considered marijuana under federal law. That created a frustrating barrier between hemp producers and resources made available to farmers of mainstream crops. Now that the law includes hemp as a mainstream crop, certain protections under the Federal Crop Insurance Act have been extended to hemp farmers. These protections will help farmers who lose crops due to normal agricultural hurdles.

CBD is legal only if it is derived from industrial hemp. 

The 2018 Farm Bill did not broadly legalize CBD. If CBD is derived from a cannabis plant containing more than .3 percent THC, it is still illegal. The only way that CBD is federally legal is if it meets these conditions:

• It was derived from industrial hemp (a Cannabis sativa L. plant containing less than .3 percent THC)
• The hemp it was derived from was produced in compliance with the Farm Bill and associated federal and state regulations
• The hemp was produced by a licensed grower

This doesn’t just apply to CBD. Excluding THC, any cannabinoid derived from a hemp plant produced in this way is legal.

The Law’s Rules About CBD Lack Clarity

Although the updated Farm Bill created legal access to CBD, there are still areas of unclarity. For one, cannabis researchers are currently limited to one source for their cannabis supply, the Marijuana Program at the University of Mississippi School of Pharmacy’s National Center for Natural Product’s Research. The CBD research conducted in the United States has always secured CBD from that program. However, now that hemp-derived CBD is legal, it isn’t clear if researchers are authorized to access CBD from hemp producers as well. 

Secondly, cannabis containing more than .3 percent THC is still federally illegal despite state legality. CBD consumers will have to do their homework before purchasing a CBD product if they are interested in complying with federal law. Just because a product is 100% CBD does not mean that it is legal. The product must be derived from industrial hemp produced in a manner that is compliant with the Farm Bill.  All other CBD products are illegal at the federal level.

How the Farm Bill of 2013 Paved the Way

When President Obama signed the Farm Bill of 2013 into law, he codified the beginning of the end of hemp prohibition. Section 7606 of the act, “The Legitimacy of Industrial Hemp Research,” distinguished hemp from marijuana and authorized state departments of agriculture and higher education institutions to cultivate industrial hemp for research and pilot programs.

The law defined hemp as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” As with marijuana, states had their own laws on the legality of hemp. However, once the 2013 Farm Bill was passed, states that had already distinguished hemp from marijuana now had federal backing to support hemp farmers.

The Nonsensical Prohibition of Hemp

Cannabis has been effectively illegal since the 1937 Marihuana Tax Act and formally illegal since the 1970 Controlled Substances Act. An honest evaluation of these laws and their origins is troubling—a mix of xenophobia, racism, and political partisanship form the foundations. The justification used to demonize the plant, however, has always been the belief that cannabis intoxication induces insanity and violence in consumers.

But in the case of both the Marihuana Tax Act and the Controlled Substances Act, the prohibition of cannabis did not exclude hemp. While hemp and marijuana both belong to Cannabis Sativa L species, they are different plants.

And one of the most significant differences between the two lies in their cannabinoid content: hemp contains trace amounts of THC (.3 percent or less) while marijuana is typically bred to maximize THC content. Hemp does not contain enough THC to cause any psychoactive effect, so the ban on hemp never made the moral or health sense the law was trying to convey.

Hemp prohibition never made economic sense either. While the cultivation of hemp on US soil was banned, the import of hemp products wasn’t. Illegalizing hemp did nothing to stop recreational cannabis use, but it left American farmers out of the global hemp industry. Given that hemp can be used in thousands of products over a multitude of industries, this is no small loss for US agriculture. In 2017, the retail value of hemp products in the US was $820 million, the bulk of which went to China, the US’s leading supplier of hemp.