If Colorado voters next week approve a technical change in the definition of “industrial hemp,” they may set in motion a nationwide effort to regulate a substance that has long occupied a quasi-legal gray area in America’s drug wars.
Next week, on Nov. 6, voters in seven states will weigh in on marijuana-related initiatives on the ballot. But one of those seven states—Colorado—has already legalized medical and recreational marijuana.
So what’s left to decide?
In a word: hemp.
Hemp plant. Photo by Vitaly via Flickr
Hemp is a specific kind of cannabis sativa. You could call it a “close sister” of marijuana, and it has occupied a quasi-legal gray area ever since the drug war began.
In Colorado, the proposed “Amendment X” to the state constitution is actually a follow-up to the original law passed in 2012 after voters approved marijuana legalization. Voters will be asked to support a re-definition of “industrial hemp” which, in the constitution, is currently defined as a “plant with a delta-9 tetrahydrocannabinol (THC) concentration that does not exceed three-tenths percent on a dry weight basis.”
The amendment proposes changing that definition to read that hemp “has the same meaning as it is defined in federal law or as the term is defined in Colorado statute.”
Why bother? According to Colorado Sen. Steve Fenberg, a co-sponsor of the measure, it would give farmers and the emerging cannabis industry in the state the necessary flexibility to stay competitive if federal laws regarding hemp change by increasing the percentage of THC.
But the focus on economic motives shouldn’t detract from the more interesting point about hemp’s place in the marijuana wars.
While there are certainly crazed hemp advocates out there who want to wear marijuana clothing, hemp is non-psychoactive. You could smoke it forever and never get high, but no one is advocating smoking hemp.
Hemp is useful as a fiber. It has been used for rope, among other things. George Washington grew hemp.
The main difference between the hemp variety of c. sativa and marijuana is that hemp contains almost no THC. But that “almost” has made marijuana foes oppose hemp cultivation.
One of the reasons that so many people want to cultivate hemp is that, while it contains negligible amounts of THC, it has large amounts of CBD—cannabidiol – a useful chemical that is also found in marijuana. Proponents believe it has numerous benefits including pain relief. The benefits of medical marijuana are derived from CBD, which can be extracted from hemp.
In fact, it is. That’s where the quasi-legal gray area comes in.
CBD is non-psychoactive. It is not considered or treated as a drug. It’s regulated—or more accurately not regulated—like many of the herbal supplements found in natural food and vitamin stores, where it is derived exclusively from hemp. It also is sold in medical marijuana dispensaries and shops, usually derived from marijuana.
A Drug Enforcement Agency (DEA) spokesperson actually said, “Hemp is a made-up word,” perhaps meaning as a legal concept, since the word has a long etymology—certainly older than the 1971 Controlled Substances Act. (I recall a pirate poem where a buccaneer bragged that “the hemp that will hang me hasn’t been grown.”)
On the other hand, a May 2018 internal directive from DEA suggests that hemp-derived CBD might be legal.
Why bother making CBD from marijuana? Because medical marijuana advocates believe that CBD has better effects when it contains a little bit of THC. They cite evidence of an “entourage effect,” where the two chemicals interact and produce better results. In the same way, some advocates believe whole marijuana rather than just CBD works better.
CBD and THC are only two of the dozens, maybe hundreds, of cannabinoids in marijuana.
CBD’s legality, even without THC, is as murky as hemp if not more so. If you read some websites (often those that sell CBD products), they claim it is 100 percent legal. Others say it is exactly as illegal as marijuana at the federal level (although several states that don’t allow even medical marijuana have approved CBD).
Under the provisions of the federal 2014 Farm Bill, hemp may be legally grown only as part of a pilot program for research purposes in a few states (though the upcoming and overdue new farm bill may expand it). Since CBD can only be extracted from marijuana or hemp, and since those plants can’t be legally cultivated under federal law, CDB can’t be legally sold or marketed or even mailed.
Marijuana is still a Schedule I drug under the Controlled Substances Act—meaning among other things, that it has no recognized medical benefits or safe usages. Until recently, CBD as a component of marijuana was considered likewise worthless and dangerous, with opponents citing the DEA and Food and Drug Administration (FDA) lack of findings as evidence: Since they hadn’t found that there are medical or safe usages, there aren’t any.
Now the FDA has changed the game by approving Epidiolex, a childhood epilepsy drug containing CBD.
The DEA quietly went along with the FDA decision and moved Epidiolex to Schedule V, the least restrictive schedule of the CSA (while leaving CBD itself on Schedule I). That was just a recognition of what the National Institute on Drug Abuse (NIDA) concluded in 2015: “CBD appears to be a safe drug with no addictive effects, and the preliminary data suggest that it may have therapeutic value for a number of medical conditions.”
The United Nations World Health Organization (WHO) made a similar finding last year, writing that “In humans, CBD exhibits no effects indicative of any abuse or dependence potential.”
Not only is there no evidence that CBD is addictive, but it may even provide opiate addiction help by offering an alternative to highly addictive painkillers, including opiates such as heroin and morphine or synthetic opioids such as oxycodone, hydrocodone, and fentanyl. That’s the finding of three recent studies.
The U.S. government actually has a patent on CBD based on the National Institutes of Health’s expectations for or potential of CBD, including for the treatment of Alzheimer’s, Parkinson’s and HIV-caused dementia, stroke, glaucoma, and seizures.
The lack of regulation means you can’t be sure what you are getting when you purchase so-called CBD products, however. According to a Consumer Reports study, less than a third of CBD products purchased online contained the stated amounts of CBD. “Some didn’t contain any CBD, while others were found to also have THC”.
Regardless of its efficacy or legality, the laws regarding usage and sales of CBD are rarely enforced, but there are exceptions.
In 2017, marijuana dispensaries in Alaska were selling CBD products while waiting for legalization to go into effect. On Feb. 9, law enforcement officers seized all of them in a multi-city bust for violating state “testing and packaging requirements,” without the paperwork that would have allowed the owners to possibly recover their property later.
No arrests were made, and other stores where the products were likewise sold—natural food and health stores—were left alone. That suggests it was more of a harassing action than a legal one.
In Ohio, following the initiation of its new medical marijuana program, CBD sales—which had been allowed for years—have become restricted to licensed marijuana dispensaries. To be fair, CBD products found at dispensaries are more likely to be what they say they are.
The lack of regulation and quality control is troublesome, but the solution is to legalize and regulate CBD—as 17 states have done—not semi-regulate or selectively enforce.
In June, President Donald Trump indicated he would “probably” sign a bill allowing each state to set its own marijuana policy without interference from the federal government—formalizing the Obama administration’s policy and Trump’s own campaign promise.
But that’s not quite legalization, and technically might not include CBD.
One thing that might improve CBD and marijuana’s odds is revenue. If they are legal, U.S. companies can monetize them, and the federal government can collect more taxes.
Canada just legalized marijuana and therefore can monetize it. Already our northern neighbor had been shipping cannabis around the world, supplying Germany’s pilot medical marijuana program for one.
Now Canada is eyeing the CBD market. Coca-Cola is considering a line of “functional wellness beverages” with CBD, too.
Stephen Bitsoli is a frequent commentator for The Crime Report and other websites on drug policy, addiction and related subjects. A former journalist and a lifelong reader, Stephen loves learning and sharing what he’s learned. Readers’ comments are welcome.