That changed with the passing of the 2018 Farm Bill, which legalized hemp cultivation and created a path to remove hemp from Schedule 1 by creating a legal distinction between hemp and marijuana. Under the legislation, hemp is classified as cannabis that contains less than 0.3% THC by weight, while marijuana is cannabis that contains more than 0.3% THC. The bill effectively removed hemp-derived CBD’s status as a Schedule 1 substance. However, because marijuana retained its schedule classification, marijuana-derived CBD is still considered federally illegal. The 2018 Farm Bill made hemp an agricultural commodity and required it to be produced and sold under regulations that implement the bill, which have yet to be enacted by the United States Department of Agriculture (USDA).
A bottle of CBD oil. Photo by: Gina Coleman/Weedmaps
CBD oil usually comes with a dropper to allow consumers and patients to measure out their dose. Photo by: Gina Coleman/Weedmaps
The sale of hemp-derived CBD products at retailers is currently prohibited in Massachusetts, although many retailers continue to make them available for purchase. Marijuana-derived CBD is for sale at state dispensaries. Purchasing from a retailer allows consumers to interact with the retailer and get any questions about the product answered prior to making a purchase.
A bill filed in the Massachusetts House last month would reverse the guidances recently released by the state, enforcing, among other things, that:
But the Farm Bill also gave oversight of CBD regulations to the Food and Drug Administration, which has only approved one drug containing CBD — Epidiolex, used for severe forms of epilepsy. Despite the USDA’s ruling on hemp, the FDA has told consumers that CBD is illegal in food or dietary supplements until the agency issues its final rules on the substance, which could take three to five years.
That’s not lost on those who spent years working to bring legal marijuana to Massachusetts, said Will Luzier, the former campaign manager for the ballot initiative that legalized marijuana in Massachusetts in 2016.
That answer has left some hemp cultivators, many of whom are already selling CBD products, concerned about what it means for them.
Those two restrictions affect a vast majority of products on the market, from gummies that claim to help with pain management to oils that allege to help with sleep.
The US Department of Agriculture has said as much, writing in a legal opinion in May that the Farm Bill has taken effect — and hemp has become legal — without any other federal agencies having to take action.
Local boards of health would ultimately be responsible for deciding enforcement strategies in their own cities and towns, according to spokeswomen for each state agency.
So why are these products still on shelves? The answer, it seems, comes down to enforcement.