In recent months, cannabidiol, or CBD—the non-psychotropic chemical compound that occurs naturally in cannabis—has become increasingly popular in the US. CBD has been turning up in bath bombs, lattes, muscle rubs, vape pens, oil extracts, dog treats, and a multitude of other products, to create a market that the Hemp Business Journal reports was worth $190 million in 2017. It’s so mainstream the New York Times’ style section wrote about it last month.
While there’s little doubt that CBD’s social status is high, its legal status remains murky, even after voters in Michigan, Missouri, and Utah’s midterm elections all supported marijuana-legalization measures. As we wrote in June, the rules governing CBD use in the US are changing as fast as the industry is growing—and even the agencies involved in regulating cannabis and cannabis-based products acknowledge contradictions among their various rules and policies. Here’s what’s changed for CBD—and what didn’t—in the midterms.
Regardless of how states voted, marijuana is still federally outlawed as a Schedule I substance, which the US Drug Enforcement Administration (DEA) states have “no currently accepted medical use and a high potential for abuse” (despite, in marijuana’s case, evidence to the contrary).
Effective in January 2017, the DEA ruled that marijuana scheduling includes “marihuana extract” (the agency typically refers to marijuana either by the plant’s scientific name, Cannabis sativa, or the Reefer Madness-era spelling “marihuana”). In the rule, the agency defined “marihuana extract” as an “extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis”—which would include CBD.
The single new federal exception to this rule didn’t come from the midterms, but from the US Food and Drug Administration, which this June approved Epidiolex, a fruit-flavored liquid containing CBD, manufactured by the UK company GW Pharmaceuticals. Epidiolex became available by prescription Nov.1, and while it was approved specifically for two potentially fatal forms of severe childhood epilepsy, the lead investigator of two clinical trials of the drug and the director of the Comprehensive Epilepsy Center at NYU Langone Health told CNN he expected that doctors would prescribe Epidiolex for “off-label” use. This practice of doctors prescribing a drug to treat conditions outside of the ones it is approved for is legal and common, according to the US Department of Health and Human Services.
“So much of [the CBD market] is operating in the absence of regulation, and states take widely different approaches,” Daniel Shortt, an attorney who focuses on cannabis law in Seattle, Washington, told Quartz in June. “You have to know your local law.”
Michigan is the latest state to legalize cannabis for recreational use in the US, joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington, Vermont, and DC. If you live in one of these states and you’re 21, then you can use CBD (and tetrahydrocannabinol, or THC, the psychotropic compound in cannabis) that comes from marijuana or hemp with impunity. In Michigan, that should go into effect by early December.
Missouri and Utah voted in support of medical marijuana, joining a growing list of states that have legalized marijuana for medical use with a recommendation from a doctor. In these states, if you have a doctor’s approval, you can use CBD worry-free.
Marijuana and hemp are essentially two versions of the same species of plants from the genus Cannabis, bred to have small genetic variations. Marijuana is typically grown to have high amounts of THC. Hemp, on the other hand, is bred specifically to have, at most, trace amounts of THC—certainly not enough to cause a psychoactive effect.
According to the 2014 Farm Bill, a set of federal laws concerning US food and agriculture, legal “industrial hemp” refers to plants and products derived from cannabis plants with less than 0.3% THC, grown by a state-licensed farmer. There’s nothing in the bill about CBD, and the hemp industry makes many of the CBD products now widely available.
The commonly held belief is that if you’re consuming products made from hemp grown by a state-licensed grower, that contains less than 0.3% THC, you’re in good shape. If you live in a city like New York, and have noticed coffee shops selling CBD lattes and the like, there’s a good chance they fall in this category.
“We’re in this stage where we have non-enforcement at the federal level, non-enforcement at the state level,” says Cristina Buccola, a New York-based attorney who advises cannabis-related businesses. “For all intents and purposes it looks like a legal substance.”
Hemp-derived CBD has a somewhat unlikely champion in Republican senate majority leader Mitch McConnell. The staunch Kentucky conservative introduced a bill in April that would establish hemp as an agricultural commodity and clearly remove it—along with any doubt about hemp-derived CBD—from the Drug Enforcement Agency’s definition of marijuana. The Hemp Farming Act is included in the senate version of the 2018 Farm Bill. but not the house version. Next, committee members from the House and Senate will have to compromise on a version of the Farm Bill. Industry insiders are optimistic that the Hemp Farming Act will be included, and could even pass this year.