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Minnesota States the Obvious: CBD Was Never Legal

CBD never legal
Written by Sarah Friedman
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In a recent posting by the Minnesota Cannabis Association, in relation to conversations they say took place between them and a Department of Agriculture representative, it’s once again stated that CBD and cannabinoids are not, and were never, legal. This should not come as a shock to anyone, and it says a lot about news reporting, if it does.

While legally, CBD was never above-board in the US under federal law, there are still plenty of ways of enjoying CBD products, as well as other cannabinoids like delta-8 THC, HHC, and THCV. In fact, with today’s cannabinoid market, these products can be bought outside of dispensaries and are even in stores in illegal states. We’ve got great products available to get you through this holiday season, so check out what we’ve got on offer to make it a truly jolly holiday. Make sure to subscribe to The THC Weekly Newsletter for deals on legal cannabis products, as well as all the latest news and industry stories. Also save big on Delta 8Delta 9 THCDelta-10 THCTHCOTHCVTHCP & HHC products by checking out our “Best-of” lists!


The 2018 US Farm Bill

All of the confusion surrounding CBD and other cannabinoids stems from the 2018 US Farm Bill. To call it ‘confusion’ is a bit short-sighted, as these are basic, and easy-to-understand legalities that no legal department would ever have a problem comprehending. As every company has some form of legal representation, including most publications that erroneously repeat lines about legality, I think it’s safe to say that legally, everything I’m about to go over, is plenty well understood by those who need to understand it.

The 2018 US Farm Bill legalized the production of hemp for hemp products. It did this by creating separate definitions for low-THC ‘hemp’, and high-THC ‘marijuana’. As per the law, the definition of ‘hemp’, which is actually ‘industrial hemp’ is as follows:

“The plant Cannabis sativa L. and any part of the plant, whether growing or not, including the plant’s seeds, and all the plant’s derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

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This definition made it possible to begin hemp cultivation for industrial purposes. What it most certainly did NOT do, was legalize synthetically derived products of any kind, or legalize anything to be taken internally or used as a medicine or health supplement. Whereas hemp cultivation moved under the regulation of the USDA from the FDA, anything involved with foods and medicines/supplements were not moved, retaining their regulation from the FDA.

As such, anything synthetically derived from hemp (including the entirety of the cannabinoid market excluding CBD), and anything meant for food, medicinal, or supplemental purposes (including CBD), are not federally legal according to the FDA as cannabis – including CBD not for industrial purposes, has never been legal in recent times under prohibition laws. This is not unclear to anyone with a legal degree, and is pretty well understandable without one. How many companies selling these products under claims of legality by the Farm Bill don’t retain a lawyer? How many government, and non-governmental agencies don’t consult legal representatives? Exactly!

Despite it not being difficult to understand this, a misunderstanding has been waged in the media in the form of a storyline by which no one with any legal understanding, seems to be able to understand basic laws. This is done to be able to push products, of course. And since the goal isn’t to scare the public away with realities of unknown chemical additives, dangerous processes, and product contamination issues, all of which run rampant in these illegal, unregulated markets, the black market literally created itself black market testing to back up its black market products.

What does this have to do with Minnesota?

There has been a logical back and forth between government and different organizations and businesses. The answer is always the same: these compounds are not legal. Maybe because they’re synthetically made (doesn’t matter if some material is from the hemp plant, if other parts are not), maybe because they’re not legal as a medicine or supplement, or maybe for both reasons.

Back in September of this year, the Alabama Board of Pharmacy was responded to about the legality of delta-8 upon request for information. Of course, the DEA literally only repeated what it had previously said, as its original statements were, indeed, clear enough. A synthetic is not covered under the definition of ‘hemp’. Even this clarification was made the opposite in the press, with headlines claiming it actually proved legalization.

This time around, it was Steve Brown, a member of the Minnesota Cannabis Association board, who apparently ‘stumbled’ onto this legally well-understood information. This came at the mention of a tincture, in reference to a question about processing facilities. According to Brown, “They stated later in the meeting that tinctures are illegal… Then this morning I received information from the Minnesota Board of Pharmacy, sent by a colleague.”

Apparently a representative from the Department of Agriculture explained the following: “The problem here is some of the products you’re mentioning here, Steven, would not be legal food by our definition… The reason for that is all these other cannabinoid products are governed by the Board of Pharmacy.”

The Board of Pharmacy in Minnesota takes its cue from the FDA, which means, the only legal hemp products in the state are hemp seed oil with no THC or CBD, and hemp flower that tests under .3% THC. The thing about a ‘medicine’ is that it must be approved by the FDA in order to be considered one, and the thing about ‘supplements’ is that once an official medication exists, the active ingredient cannot be advertised as a nutritional supplement.

How do we know CBD was never legal?

While this may not make sense, and is greatly in the benefit of big pharma, it still exists as law that the active compound in an approved medicine cannot be marketed as a nutritional supplement in any food or beverage product. Supplements are currently regulated as food by the FDA. And since the drug Epidiolex (pharma CBD) was approved in 2020, it is now illegal to put CBD into supplement products. Epidiolex was approved by the FDA on July 31st 2020. This was done in the middle of a worldwide vote to reschedule cannabis, which resulted in CBD being removed from Schedule IV of the Single Convention on narcotic Substances, making it available for legal medical use globally. Of course, ‘medical’ use varies by country, and what some see as a supplement, others see as a prescription medication.

Imagine that, just as CBD became okay to use as a medicine (and supplement depending on definition), the US approved a pharmaceutical medication that would keep it illegalized for every industry and company outside of big pharma. So, much like France, which was short-sighted enough to go to court with the EU over blocking natural CBD products into the country, while openly selling Epidiolex, the US government is saying out of one side of its mouth that CBD is just fine, and out of the other side, that its totally against it.

In terms of other cannabinoids like delta-8 THC, THCV, HHC, CBN, regardless of whether they are naturally occurring or not, if they only occur in small enough amounts to require synthetic processing to make enough for products (all the natural ones do), they’re automatically going to qualify as synthetic. As synthetics were never legalized, and as analogues of Schedule I substances like delta-8 (an analogue of delta-9) are regulated under the Federal Analogue Act, such compounds, much like CBD, were never legal.

While CBD is therefore legal in a legalized state, the synthetically made cannabinoids still aren’t, because they’re synthetics. No state law varies from federal regulation on this, so states setting separate laws for illegalizing delta-8, like Colorado and Vermont, are doing way more than they have to, since by both federal and state law, the compounds aren’t legal.

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Says a lot about trying to stamp out an industry that such states would make separate laws. And all this, when they could simply regulate how certain compounds are made to ensure safety. Delta-8 THC has never shown an issue of worry in its natural form, so working to illegalize it, rather than regulate it, is a strange move, and one that only makes sense in my mind, if it’s being held back for use in a pharmaceutical market later. Considering how far other countries have gone to suppress natural CBD, while pushing Epidiolex, it’s not that hard to imagine this is true.

Is there a loophole?

Despite confusion created by the press, there is no legal loophole here with either CBD or other cannabinoids. The confusion created centered around the idea that anything that came out of a hemp plant of less than .3% THC was legal for whatever use was desired. As if all those other provisions in the Farm Bill related to the definition of hemp, didn’t exist at all. Realistically, it’s all in the definition itself, and what it does and does not include.

Having said that, there is another type of loophole, which has more to do with dealing with consequences. In this case, it’s about the lack of them. Even if something is illegal, if there isn’t a real threat of being caught or paying consequences, then is it really illegal? The obvious answer is yes, it still is, but the other aspect is that it can also be gotten away with, and that’s incentive to do it.

Maybe the US government is waiting for some kind of market collapse and pharma/biotech buyout of the current industry before going after the black market to support a new legal pharma-owned one. And maybe there is no intention of doing anything for lack of money or popularity for losing drug wars. Either way, at least at this juncture, the US government is making very few moves to enforce the illegality of any of this, which in and of itself has created a loophole for production, sale and use. They might not be legal, but CBD and the rest of the compounds, sure fit into a no-one-will-do-anything-about-it loophole.

Conclusion

To be honest, it makes very little difference whether CBD and other cannabinoids are legal, or if they were never legal at all. The markets are there, and aren’t suffering consequences for being there. For buyers, it’s best to know your products and brands to ensure quality, as unregulated markets spawn a lot of dirty stuff.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

About the author

Sarah Friedman

I am a US born writer, travelling the world and doing the digital nomad thing.

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