The 2018 Farm Bill and CBD Products

In October 2018, Employers Council published a primer on “cannabidiol,” commonly known as CBD, speculating that the passage of the 2018 Farm Bill would introduce a new complicating factor into the already complex framework of state laws regarding cannabis products derived from marijuana and hemp. Before the end of 2018, the Farm Bill passed both houses of Congress, legalizing hemp (but not marijuana) by removing it as a Schedule I substance prohibited by the Controlled Substances Act. Marijuana, as opposed to hemp, remains illegal at the federal level as a Schedule I controlled substance. But CBD can be extracted from either marijuana or hemp.

For employers, this means that employees may use CBD products on a more frequent basis. According to manufacturers, some CBD products are produced using an isolate derived from hemp, rather than marijuana. It is claimed that such products do not contain the active ingredient found in marijuana, tetrahydrocannabinol (THC), and therefore their use would not be captured on a drug screen that tests for cannabis use on the basis of THC. However, other information shows that CBD products often also contain at least some amount of THC. Use of those products would show up on a timely, traditional drug screen.

While some advocates for ending marijuana and hemp prohibition hailed the passage of the 2018 Farm Bill as an important step towards national decriminalization of all cannabis products, the truth is that the law in this area is more complex now than ever before. For instance, now that the federal government no longer regulates hemp, it is possible for state legislatures to institute their own regulations. In addition, some states that have legalized medical or recreational marijuana have also banned food products that include marijuana and hemp byproducts, like CBD. End users of cannabis products are also likely to be confused with what is and what is not legal for their consumption on a state-by-state basis. And some states that did not approve of the 2018 Farm Bill may well institute their own restricting legislation in the near future. And consider the question whether non-THC, CBD-only products may soon have a different standing as a reasonable accommodation under laws like the Americans with Disabilities Act, especially considering that hemp-derived CBD products may no longer be considered “unlawful” or “illegal” under federal law.

These questions are virtually certain to be faced down by both courts and legislatures in the coming year.