John Dillard: Hemp Still Faces Stiff Regulatory Challenges

09:39AM Aug 14, 2019
John Dillard
No stranger to dirty boots, John Dillard, an attorney with OFW Law, focuses his practice on agricultural and environmental litigation.
( Farm Journal )

Industrial hemp is having a moment. The 2014 farm bill deregulated the long-forbidden crop to an extent, allowing land-grants and state ag departments to conduct research on hemp. The 2018 farm bill completely legalized the crop. USDA plans to release rules that will set the groundwork to allow hemp cultivation in all states in time for the 2020 growing season.

In the meantime, farmers are growing hemp pursuant to the 2014 farm bill’s research program. However,  it seems the primary research project is determining if farmers can make money growing hemp.

A New Phenomenon

In the future, there might be a market for domestically grown hemp fiber and other components of the hemp plant, but much of the present market demand is driven by cannabidiol, also known as CBD.

In the past few years, this hemp extract has become a common item in convenience stores, vape shops and everywhere in between. CBD is infused in beverages, coffee beans, food, dietary supplements, lotions and pet food. Some products bear marketing claims touting CBD’s ability to relieve depression, reverse the effects of Alzheimer’s, treat opioid addiction, heal aches and pains, and ease anxiety in pets.

CBD is Still Illegal

There is one problem with all these CBD applications — they’re illegal. Although the 2018 farm bill legalized hemp cultivation, it didn’t change CBD’s legal status. Under the Food, Drug and Cosmetic Act (FDC Act), CBD is considered a pharmaceutical drug. The extract has only been approved for use in Epidiolex, a drug approved by FDA in 2018 to treat certain seizure disorders.

Under the FDC Act, a substance that is considered a drug cannot be added to food or marketed as a dietary supplement. Drugs must be evaluated under a stringent approval process to ensure they’re safe and effective and that consumers are aware of any dangers or side effects. Foods and dietary supplements are not allowed to bear claims they can treat diseases; products bearing these claims are regulated as drugs.

Uncharted Territory

Despite their illegal status, FDA is not expected to completely shut down the market for CBD-infused foods, dietary supplements and vape pods. It would take up too much of the agency’s resources. However, as the agency gets their arms around the issue, I anticipate FDA will expand their crackdown on the most egregious violators making wild and unsupportable labeling claims while establishing a regulatory framework to approve the use of CBD in some foods, dietary supplements, lotions and pet food.

This process will take time. Although FDA can announce it will not take enforcement action against certain uses, the agency will have to develop regulations, which could take more than a year. We are in uncharted territory with this “new” crop. The legal uncertainty around CBD might not please everyone with hemp to sell.

If you’re interested in learning more about growing hemp on your farm, click here to see future Hemp College dates.