CBD is a chemical compound found naturally in cannabis sativa, a plant species that includes the cannabis and hemp plants. (Think of cannabis sativa as a family, and cannabis and hemp as sisters within that family.) The main difference between the two plants is that hemp contains higher amounts of CBD than THC (the main psychoactive compound intoxicant of cannabis) while cannabis plants contain more amounts of CBD amounts of THC than CBD.
CBD and THC do not contain the same amount of psychoactive components associated with feeling “high,” according to Mackenzie Slade, director of Cannabis Public Policy Consulting. “CBD is technically a psychoactive cannabinoid, but when it’s derived from hemp plants, the psychoactive component is very, very low,” he says. While CBD won’t get you high, early studies indicate many potential benefits, including the ability to mitigate symptoms of depression and anxiety, relieve pain, and protect against some neurological diseases.
CBD is also scientifically linked to seizure prevention, leading the Food and Drug Administration (FDA) to approve a prescription drug called Epidiolex, which contains CBD as an active ingredient.
Despite these advantages, Slade says the legality of CBD is a gray area that legal analysts continue to uncover. Remember how CBD can be derived from both cannabis and hemp plants? This origin plays a role in its legality. Federally, cannabis-derived CBD is considered a Schedule 1 substance and is illegal, Slade explains. But CBD derived from a hemp source that contains less than 0.3% THC by dry weight is not illegal because hemp is not a controlled substance. “[This distinction is called] a ‘rule of origin’ because CBD itself is not identified in the schedule of the Controlled Substances Act,” says Slade.
Additionally, it is illegal to sell CBD products that are not approved by the FDA, according to the federal Food, Drug, and Cosmetic Act. “Food, Drug and Cosmetic Act [states] that once a substance is used as an active ingredient in a new drug that has been approved or authorized for clinical trials, foods and beverages containing that ingredient cannot be introduced into interstate commerce. This is called the drug exclusion rule,” says Slade. He explains that this means that the FDA’s approval of Epidiolex removed the ability to produce and sell any food or drink with CBD. This detail makes making the situation even more complicated because CBD is commonly used in foods and beverages such as lattes and juices.”[This is why] the federal legal status of CBD depends on the type of product it is and its source,” adds Slade.
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Farm Bill 2018
The biggest year for CBD legalization (so far) was 2018, when the Agriculture Improvement Act (also known as the Farm Bill of 2018) was signed into law. “Farm bills are laws that govern agricultural production and are updated every few years,” says Slade. “They basically serve as enabling laws for the federal government to regulate and provide guidance on agriculture and food.”
The 2018 farm bill was the first time a farm bill included hemp cannabis plants. It made the cultivation, production and sale of industrial hemp legal and effectively regulated. When this change happened, brands selling products containing CBD were excited because it meant hemp farmers could extract CBD from their plants for ingestible purposes legally. But Slade says his hope was premature because of the drug exclusion rule, which was already in place because of the FDA’s approval of Epidiolex.
