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What is the 2018 Farm Bill?

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In the world of CBD, you’ll often hear talk of the 2018 Farm Bill. It’s especially prolific in references surrounding the legality of CBD. So what is the 2018 Farm Bill and why is it so important for the CBD industry?

Every five years, the United States Congress passes a slate of legislation regarding national policies on agriculture, nutrition, environmental conservation, and forestry. This legislation is commonly referred to as the “Farm Bill,” and when a new Farm Bill is passed, it affects the next five fiscal years. The 2018 Farm Bill, for example, remains effective through 2023.

The full name for the 2018 Farm Bill is the Agricultural Improvement Act of 2018. It was signed into law by the Senate on December 11th, 2018. This Bill is so important because, for the first time since prohibition efforts against cannabis began in 1937, hemp became a legal and accessible commodity within the United States, including all hemp-derived products such as CBD oil tinctures, topicals, and vaporizers.

McConnell Amendment #1 (2018)

The McConnell Amendment #1 of the 2018 Farm Bill outlined the definition of hemp and the legalization of all products meeting this definition. This Amendment was drafted by Senate Majority Leader Mitch McConnell, who also championed the 2018 Farm Bill.

Why? Because McConnell, who represents his home state of Kentucky, wanted to bolster the agricultural economy of the state. Kentucky had experienced years of economic decline, due largely to a decrease in tobacco sales. So, McConnell believed that hemp could step in and create new economic opportunities for farmers within Kentucky, as well as in other areas of the United States.

The Definition of “Hemp”

Within McConnell Amendment #1, the 2018 Farm Bill defined hemp as:

The plant Cannabis Sativa L. and any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.

Hemp, a member of the Cannabis Sativa L. plant genome, differs dramatically from the psychoactive marijuana, another member of the Cannabis Sativa L. genome. However, hemp is known to possess an average concentration of THC — the psychoactive cannabinoid primarily found in marijuana — of about 0.3%, not enough to induce intoxicating effects in users. This is why the definition of hemp contains a phrase regarding THC.

The Legality of Hemp

The 2018 Farm Bill effectively legalized all hemp products, so long as those products met the definition of “hemp” outlined by McConnell Amendment #1. Individual states and Native American tribes were also given the opportunity to apply for control over hemp production within their borders, so long as local legislation did not interfere with the legalization of hemp.

States and other territories wishing to control their own hemp markets had to ensure that they met a set of legal qualifications:

  1. States and territories must be able to provide relevant information regarding the land on which hemp is produced.
  2. States and territories must establish a procedure for testing the THC concentration levels of hemp, using a post-decarboxylation process or another similarly effective method.
  3. States and territories must establish a procedure for the effective disposal of products that are in violation of the definition of hemp, such as products found to contain more than 0.3% THC.
  4. States and territories must establish a procedure for hemp production to comply with enforcement policies.
  5. States and territories must establish a procedure for conducting annual inspections of hemp producers. This was included in 2018 Farm Bill to both verify that products which did not meet the definition of hemp would not be produced and to ensure that hemp producers were only subjected to one inspection per year.
  6. States and territories must certify that their territory has the resources and personnel to carry out the practices and procedures of hemp production and oversight.

The 2018 Farm Bill also left room for individual states and territories to create their own laws regarding hemp, so long as those laws did not interfere with federal policy. This means that yes, states can choose how they wish to regulate the CBD trade within their borders but no, states cannot outright ban CBD, as some states have vowed to do.

Also, any hemp producer that “negligently” violates state or tribal law three times in a five-year period shall be ineligible to produce hemp for a period of five years, beginning on the date of the third violation. This was included in the 2018 Farm Bill as a three-strikes policy against producers unable or unwilling to comply with new federal and state regulations regarding hemp.

A Federally Controlled Hemp Market

While states and territories are able to apply to control their own hemp markets under the 2018 Farm Bill, it did not give reigning authority to local legislation. All applications have to be approved by the Secretary of Agriculture, currently Sonny Perdue, a politician, businessman, and veterinarian. Also, all states who did not apply to control their local hemp markets came under the authority of the United States Department of Agriculture (USDA).

For states who did not apply, the USDA:

  1. Established land information on areas within a state or territory that could be used for the production of hemp.
  2. Established THC-testing procedures.
  3. Established disposal procedures for products that did not meet the definition of hemp.
  4. Established procedures of compliance towards hemp enforcement policies.
  5. Established annual inspection procedures.
  6. Established that the Secretary of Agriculture, currently Sonny Perdue, could implement other practices as deemed appropriate for a particular state or territory.

For all hemp producers, whether state or federally approved, have to obtain a license for manufacturing hemp, issued by the Secretary of Agriculture. This means that Perdue has the authority to allow or deny hemp producers the right to grow hemp, regardless of local legislation passed by individual states or territories. Unlicensed hemp production in the United States is considered a violation of the law.

What Did the 2018 Farm Bill Not Do?

In short, the 2018 Farm Bill established a definition of hemp and legalized all products meeting that definition. It did not legalize cannabis, although hemp is a member of the Cannabis Sativa L. plant genome. The Bill also noted that it would not interfere with specific, current legislative practices.

For example, the 2018 Farm Bill explicitly stated that new hemp laws would not interfere with the Federal Food, Drug, and Cosmetic Act of 1938. This 1938 law gave the Food and Drug Administration (FDA) the authority to oversee the safety of food, drugs, medical devices, and cosmetics.

CBD products are sometimes marketed as “dietary supplements” or food additives. However, the FDA has yet to recognize the legality of CBD for dietary or consumable uses. Until the FDA decides how to regulate CBD, no products containing CBD are legally allowed to advertise as dietary or food supplements, or as consumable goods.

In fact, restaurants nationwide have since been sent warning letters regarding menu items that contained CBD oils, including a cafe in Seattle that sold a CBD-infused latte. However, Mitch McConnell, now an advocate for hemp products, called on the FDA to determine regulatory practices for CBD as soon as possible.

And because this 1938 law gave the FDA the authority to regulate the cosmetics industry — of which there are many, many CBD-infused cosmetic products — the FDA has the authority to remove any cosmetic from the market if that cosmetic is mislabeled, misbranded, contains unsafe ingredients, or has been adulterated prior to sale.

Regarding homeopathic preparations, of which CBD can be considered, the Federal Trade Commissions (FTC) Act of 2016 declared that homeopathic products cannot advertise claims of effectiveness without “competent and reliable scientific evidence,” a law overseen by the FDA. Due to a decades-long prohibition of all things cannabis, there remains a sufficient lack of government-approved research studies regarding the efficacy of CBD, so until the FDA discovers more of the plethoric database of qualitative CBD research, CBD products cannot perpetuate health claims or claims of effectiveness.

It is argued that the 2018 Farm Bill perhaps left too much authority in the hands of the FDA, a government agency notoriously reluctant to regulate hemp-derived products. However, at Mitch McConnell’s pursuance, we may see definitive CBD regulation practices — authorized by the FDA — in the near future. The FDA wishes to learn more about CBD and other hemp-derived cannabinoids before that happens, even though a sufficient amount of viable research studies already exist.

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