CBD products are everywhere, but lawmakers have left them in a legal gray area.
A woman vaping hemp-derived CBD at a 2017 trade show in New York. Photo by Spencer Platt/Getty
You can get cannabidiol, a.k.a. CBD, a.k.a. weed that doesn’t get you high, at pretty much every gas station and pharmacy, though it exists in a murky legal category. The Federal Drug Administration classifies it in the same substance schedule as heroin and meth, even as moms fight stress by putting it in their bath bombs and college kids openly sell CBD Juul products on Instagram. Some states were allowed to study hemp, which some CBD is derived from, via the passage of the 2014 version of the so-called Farm Bill—an omnibus piece of legislation that covers all sorts of agricultural- and food-related issues. The result of this mishmash of rules was that though the DEA basically didn’t bother to go after the many, many people who were selling or using hemp-derived CBD products during their recent explosion in popularity, it was technically illegal to do either.
But since then, a coalition of advocates and farmers convinced legislators, including some Republicans such as Senate Majority Leader Mitch McConnell, that hemp should be legal, full stop. The latest iteration of the Farm Bill, passed into law late last month, declassifies hemp and instead puts the Federal Drug Administration in charge of regulating it. This doesn’t quite mean it’s a great idea to start pounding CBD crystals in front of a DEA drug-sniffing dog, which I only learned after calling up John Hudak, a senior fellow at Brookings Institute and the author of Marijuana: A Short History. He helped me unpack what’s next for this explosively popular gray market:
VICE: First of all, let’s clear up what I’m assuming will be a common misconception: The CBD being sold in your local organic food store is not suddenly legal, right?
John Hudak: Correct. So the CBD that is marketed as legal right now is almost certainly not legal. There is a provision in the Farm Bill that CBD is de-scheduled and would thus be made legal if it were derived from hemp. But that hemp would have to be grown legally, and no state has gotten a system up and running that is legal and compliant with the 2018 Farm Bill. Now, there could be CBD products that are produced from the pilot programs under the 2014 Farm Bill, and those products would now be considered de-scheduled, but in reality, most of what you see as a CBD product is still illegal under federal law.
What’s more, products with CBD in them that have medical or health claims attached to them would also be violating federal laws and regulations as well. That is true now, and it will be true in the future even with hemp legalization.
What’s going to happen to all the products currently on the shelves? Are they going to be replaced by different, more quality-controlled products that have been FDA-approved?
Well none of these products are going to be submitted for FDA approval, so none of them will be approved. There’s one substance that is CBD-based that has been approved by FDA and others by pharmaceutical companies that are in trials, but I think the enforcement that we’ve seen by state and federal officials will probably be the same type of enforcement that we’ll see moving forward. That tends to be cease-and-desist letter from the FDA and local law-enforcement actions against stores and producers that are putting those products out there.
So the onus for now falls on the consumer to figure out what’s legal? How would they know?
If a product is submitted for FDA approval, and it is approved, then there would be a label granting that status. The ones we have on the shelves now, what you would consider a traditional CBD product, those are not the types of products that are going to get approved. They might be approved as a safe food product. That would be one designation. But if you have a CBD product on the shelf that says that it will cure cancer or grow your hair or deal with epilepsy or deal with insomnia, unless it goes through a rigorous process that none of these companies are willing to do, they won’t be approved.
Are the current products going to disappear while these new, compliant products are being developed? Or will the coffee shop down the block keep selling CBD lattes?
I think the illegal market that exists is going to continue to be an illegal market that exists. A lot of people in this country don’t believe that CBD products like that are illegal. They didn’t believe it was illegal before the Farm Bill passed. There are many people that don’t believe that interstate commerce of these products was illegal before. And they also don’t believe the FDA has the right to pull things off the shelves because they make unproven health claims. So that is true for producers and consumers as well, so I think this will continue to operate in a gray market.
Why do you think this is so popular right now among consumers?
I think that there are a lot of fads in our culture, and people believe that certain products will do certain things for you even when those claims have not been proven in the traditional ways that we want them proven, like through vigorous scientific testing. The sort of telephone game of what products work for what condition has boosted consumer interest in CBD, and it’s aided by an illegal industry that’s making unproven health claims. And while I may think you are taking advantage of sick people by selling them things that oftentimes are snake oil, people are at their wits’ end and want relief for whatever ails them, and are often willing to try anything. A lot of people find relief from CBD, but a lot of people don’t.
So for people who use CBD products regularly, should they be worried at all? Can you bring CBD on an airplane, for instance?
CBD is now de-scheduled, and as long as you have a product produced using legal hemp, and that product is not marketed in a way that is making improper health claims, then yes, you can bring it with you on an airplane.
Typically law enforcement is more interested in affecting the producer side than the consumer side when it comes to these products. I’m sure that people have been arrested for having CBD products. Federal officials tend not to be doing this, but I won’t say that this has never happened. But it’s a much more rare occurrence.
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