A Brief History of CBD & Its Legal Status in the United States

Hemp is a versatile plant that has been an important part of history.  The earliest samples of hemp fiber are 10,000 years old. From 1,000 BC to 1883, it was the world’s largest agricultural crop, used for fabric, fiber, oil, paper, and medicines and was a primary source of protein.  It was even responsible for the War of 1812.

Hemp has always been a part of American history.  The first colonies, like Jamestown, were required to grow Indian hempseed and by the mid 1800’s, there were over 8,000 hemp plantations (>2000 acres).  Betsy Ross used hemp cloth to make the first American flag; Thomas Jefferson used hemp paper for drafts of the Declaration of Independence; George Washington grew it on his plantation at Mount Vernon; and, Benjamin Franklin used it for his printing press.  Then things got complicated.

It is a bit confusing but marijuana and hemp are two versions of the same plant (Cannabis sativa) but with slight genetic variations.  Marijuana has been bred to contain high amounts of THC (tetrahydrocannabinol), a  psychoactive chemical that makes the user impaired or “high.” Hemp has been bred to contain high amounts CBD (cannabidiol), a phytochemical with medicinal properties, and virtually no (< 0.3%) THC.   Hemp will not make you high.

In 1937, congress passed the Marihuana Tax Act, lumping marijuana and hemp together and essentially making it illegal .  An urban legend is that William Randolph Hearst, members of the DuPont family and Andrew Melon conspired with Harry Anslinger, the commissioner of the Federal Bureau of Narcotics (today known as the DEA: Drug Enforcement Administration), who drafted the legislation.  Hearst was heavily invested in timber for his newspapers and feared that hemp paper would compete; Du Pont had just invented nylon and feared that hemp fiber would compete; Melon had significant investments in du Pont; and as Melon was Secretary of the Treasury, was Anslinger’s boss.  

Whether truth or legend, for all intent and purposes, the Act banned Cannabis in the United States but in 1969,  it was ruled unconstitutional/overturned by the US Supreme Court (Leary v. United States, 1969).  From May 1969 until October 27 1970, all cannabis (Marijuana and Hemp) was legal in the United States.  That is when the Controlled Substance Act (CSA)  was signed into law and all cannabis was again banned.  Then things became really complicated.

In the 2014 Farm Bill, “Industrial Hemp” was defined as “…the plant Cannabis sativa L. and any part of such plant, whether growing or not” containing less than 0.3%  THC. This made it distinct from marijuana and authorized institutions of higher education or state departments of agriculture in states regulate and conduct research and pilot programs.  It legalized it’s cultivation, transport, processing, marketing, sale and use^1,2 with the intent of congress that neither hemp nor its cannabinoids be treated as a controlled substance.³ Subsequently, in 2017, the Drug Enforcement Administration (DEA) stated that it was “…not seeking to schedule cannabinoids,” did not “…purport to override the [Farm Bill]” ^4,5and thus, in an internal memo,  “Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana . . . are not controlled under the CSA” and therefore, not regulated by the DEA.  

So the short answer would be: Yes – Hemp and CBD are federally legal.

Citations

1. Legitimacy of Industrial Hemp Research, 2014. Pub. L. 113-79, §7606.
2. Consolidated Appropriations Act, 2018. Pub. L. No. 114-441, §537, §729
3. Amicus Brief of Members of United States Congress in Support of Petitioners with Consent of All Parties. Hemp Industries Association vs. Drug Enforcement Administration, Case No. 17-70162 (argued February 15, 2018).
4. Hemp Industries Association vs. Drug Enforcement Administration, Case No. 17-70162
5. See Brief for Respondents at 29, Hemp Indus. Ass’n. v. DEA, Case No. 17-70162 (decided April 30, 2018)
6. DEA Internal Directive Regarding the Presence of Cannabinoids in Products and Materials Made from the Cannabis Plant (May 22, 2018).