Here is a state by state breakdown of CBD‘s legal status.
Legal (under .3% THC)
Legal (0% THC)
Delta-8 THC: The New Legal Grey Area Cannabinoid
Delta-9 is not the only type of THC, nor the only type with psychoactive effects. Delta-8 and delta-9 contain double bonds, yet delta-8 has the bond on the eighth carbon chain, whereas delta-9 has it on the ninth – hence the names.
There are distinct differences between the two, though. Unlike CBD (which is renowned for its lack of intoxicating effects), delta-8 is just the opposite. Delta-8 is psychoactive, similar to delta-9, only much less so. “Weed Light” may be the best way to think about delta-8.
Delta-8 can produce euphoria, relaxation, stimulation, and appetite stimulation – as well as a heady psychedelic experience. While delta-8 has all these effects to varying degrees, it does so with much less intensity than delta-8. The benefit, supposedly, is a reduced risk of unpleasant side effects like paranoia and anxiety.
While all these differences may seem somewhat insignificant, they radically alter how delta-8 is handled in a regulatory sense. In the U.S., being derived from hemp and an absence of delta-9 puts delta-8 in the same legal class as CBD products (for now). It is worth noting that much of the current supply of delta-8 is produced synthetically – creating yet another legal grey area.
It is a confusing situation, as in the 2018 Farm Bill, any cannabinoid derived from hemp is exempt from the Controlled Substances Act.
However, as you can see here, Delta-8-THC is specifically listed as a Schedule I controlled substance.
Would you be surprised to know you’ve likely already ingested delta-8 if you’ve tried CBD? Delta-8 is a naturally occurring metabolite of CBD and occurs innately in hemp (although in negligible amounts). It will no doubt be interesting to see how the story of delta-8 unfolds.
Also, know that you can still fail a drug test from using delta-8, as the tests look for any THC metabolite.
USDA Final Hemp Rules
U.S. Department of Agriculture policymakers released final hemp production rules last week in the Trump Administration’s closing days.
Public remarks from farmers and industry insiders influenced these new changes to the interim hemp rules (created in 2019) and will take effect as of March 22, 2021. However, the new Biden Administration will likely reevaluate the law.
Although modifications provide some relief for farmers regarding disposal, THC negligence, and the harvest window after sampling, there remain numerous areas of concern that the USDA failed to acknowledge or act on – such as sampling requirements and the requirement for testing labs to register with the DEA.
It is undeniably a huge step forward to have enhanced clarity on cultivation, testing, and compliance.
As with all new regulations, there are pros and cons. It’s crucial to remember that this is simply the next iterative step in our collective journey with hemp.
Fresh incoming leaders at the USDA, continually evolving state laws, and increasing acceptance for cannabis at large all but guarantees support for our industry will continue to grow and develop. As can be seen clearly with the FDA, the sector’s rapid growth far outpaces the government’s regulatory abilities.
Where Are We Now?
While the legalization of hemp was incredibly exciting, it was long overdue and only the beginning of a long process. CBD manufacturers are eager to receive guidelines from the FDA on how they can legally market hemp and CBD.
Since the FDA has officially classified CBD as a drug, it cannot currently be used in dietary supplements. However, the FDA’s strict stance on going after companies making health claims is easy to understand – to quote Dr. Scott Gottlieb, former commissioner of the FDA:
Yet, ironically, this is precisely why the current laws must change. If CBD is allowed to be marketed and regulated as a dietary supplement, all those unscrupulous vendors selling contaminated or ineffective products will immediately disappear from the industry.
Presently, there are no regulations in place, allowing a multitude of companies to deceive consumers and sell low-quality (sometimes dangerous) CBD products. Dr. Gottleib claims that he “gets asked at almost every Capitol Hill meeting [about CBD]”, and as such, we can only hope that change and clarity are coming very soon.
Current FDA commissioner Dr. Stephen Hahn has also stated historically that his agency is working to move forwards with creating CBD regulations. Hahn is quoted as saying:
“We’re not going to be able to say you can’t use these products. It’s a fool’s errand to even approach that. We have to be open to the fact that there might be some value to these products, and certainly Americans think that’s the case. But we want to get them information to make the right decisions.”
Recent Legal History of Hemp and CBD
Agricultural Act of 2014: Farm Bill Sets the Stage for Hemp Legalization
Signed by former President Barack Obama on February 7th, 2014, the 2014 Farm Bill established a clear distinction between hemp and marijuana (hemp contains less than .3% THC by dry weight). Additionally, it authorized higher education institutions or state departments of agriculture (in states where hemp was legal) to conduct pilot programs and research – Ananda Hemp was born out of these pilot programs, which helped pioneer the CBD industry in the U.S.
The purpose of this was to determine whether or not growing hemp would be beneficial for American farmers and businesses. While CBD was still far from being federally legal at this point, rights to legally grow and distribute hemp/CBD were granted to a handful of pilot companies to essentially test the market.
Agriculture Improvement Act of 2018: Hemp Becomes Federally Legal
Former President Donald Trump signed this bill on December 20th, 2018, and legalized hemp (defined the same as in the 2014 Farm Bill) on a federal level, therefore removing it from DEA regulation and making it an agricultural commodity. Also, CBD (as long as it’s from hemp – not marijuana) was removed from Schedule I status, and moved down to Schedule V (defined as having a low potential for abuse and dependence).
However, this legality only applies to hemp grown in the United States under strict supervision of the U.S. Department of Agriculture. This is an important distinction, as any CBD products on the market containing imported hemp from foreign countries are not legal.
Additionally, this bill grants the power to states and Native American tribes to enact their own laws regarding the production and sale of hemp within their borders. However, they may not restrict the shipment or transportation of hemp within their jurisdiction.
At Ananda Hemp, we are grateful to have played a central role in the passage of the 2018 Farm Bill, beginning with the founding of the U.S. Hemp Roundtable. We maintained a consistent presence in Washington D.C., educating congressman and policy-makers on the benefits of hemp.
In 2018, a congressman visited our facility in Kentucky, holding a press event that was central to the passing of this revolutionary bill.
Botanical Safety Consortium
Announced in February 2019 by former FDA commissioner Dr. Scott Gottlieb, the purpose of the Botanical Safety Consortium is to gather leading minds from the industry, academia, consumer-interest groups, non-profits, and the government to further scientific advances in determining how to better evaluate the safety and efficacy of botanical ingredients in dietary supplements.
This new collaborative group was likely created in part after the FDA tested a variety of CBD products – and found a complete absence of cannabinoids. Worse yet, they found heavy metal and pesticide contaminations in some. This concern is why we always publish our Certificates of Analysis directly on our website. At Ananda Hemp, our loyalty is to customer safety, quality, and transparency.
SAFE Banking Act of 2019
Passing through the House of Representatives on September 25th, 2019, the Secure and Fair Enforcement Banking Act proposes to “…generally prohibit a federal banking regulator from penalizing a depository institution for providing banking services to a legitimate marijuana-related business.”
Mainly, it would ensure that banks would not be held liable for facilitating financial transactions for CBD/hemp businesses. It would also mandate the Federal Reserve and FDIC to give clear guidelines to financial institutions about the legality of hemp commerce (both of which have been significant obstacles for hemp companies since the passing of the 2014 Farm Bill).
Unfortunately, this bill faces an uphill battle going through the senate, as many have voiced legitimate concerns, such as Mike Crapo, chairman of the Senate committee on banking:
“Significant concerns remain that the SAFE Banking Act does not address the high-level potency of marijuana, marketing tactics to children, lack of research on marijuana‘s effects, and the need to prevent bad actors and cartels from using the banks to disguise ill-gotten cash to launder money into the financial system.”
Interim Final Rule
On October 31st, 2019, the USDA published the Interim Final Rule designed to establish the Domestic Hemp Production Program. The IFR formed the foundation of what will be testing and licensing protocols, eligibility rules for federal programs, seed certification programs, importing/exporting hemp, and production compliance – as well as the procedures for the USDA to approve each of these plans.
While the IFR was an excellent step towards creating the infrastructure and guidelines for overall hemp production in the U.S., it had a frustrating absence of any stipulations regarding the sale and marketing of hemp/CBD products. Countless CBD companies are bursting at the seams with exciting and innovative ideas for products containing CBD – and are eager for the FDA to get on the ball with policy making.