• Rachael Z. Ardanuy, Esq.

Everything you need to know about FDA vs Hemp + CBD during the government shutdown


Just before the end of 2018, President Trump signed the Agriculture Improvement Act of 2018 (Farm Bill) into law. This 800+ page bill is a historic step forward for the cannabis industry as it removes hemp from the list of drugs in Schedule I under the Controlled Substance Act (CSA). Essentially, it makes hemp legal to grow, cultivate, process, and sell on the Federal level. Finally.


The Farm Bill also moved the regulation of hemp to the Agriculture Department (USDA), which gives states the opportunity to play a significant role in developing their hemp regulations.


“States are expected to share a fairly sizeable role in regulations of the nascent industry and the USDA is only given 60 days upon receipt to reject or accept a State regulatory plan. Upon rejection, the Federal rules will prevail.” — THSH


The concern on everyone’s mind was the FDA. While hemp was relegated to the regulation of the Agriculture Department, the FDA retained the authority to regulate hemp-derived products, including CBD, in food, drugs, and cosmetics under the Federal Food, Drug, and Cosmetic Act (FDCA).


To complicate matters, during this momentous moment in the cannabis industry, there was another remarkable thing happening: the longest government shutdown in American history.


The partial shutdown resulted from the government’s failure to pass an annual spending bill that the president would approve before the deadline. Trump refused to approve a spending budget that did not include funds for his proposed border wall, and lawmakers refused to the pass a budget that included the wall funds. Government gridlock produced the longest government shutdown we’ve seen to date.


The partial government shutdown lasted 35 days and affected 800,000 federal employees. Federal departments including Agriculture, Commerce, Justice, Homeland Security, Interior, State, Transportation, Treasury and Housing and Urban Development, as well as several smaller agencies were impacted, with many employees being furloughed while other departments were closed entirely.


The Agriculture Department was required to close state and local farm service centers, meaning anyone with questions about the recently passed Farm Bill (or the discrepancies with the FDCA) wouldn’t be getting any answers until the partial government shutdown ended.


While waiting a few weeks to get a question answered doesn’t sound so bad, this was all occurring while the FDA was seizing hemp-derived CBD products and local law enforcement across the country stopping and seizing truckloads of hemp.


Stories of the FDA confiscating CBD edibles and other hemp products began swirling around the industry in early January. The owner of a shop in Yuma who was selling pet-friendly CBD products intended for animals was told that the products were ‘not fit for human consumption’ and were required to be labeled as such.


“There seems to be a good amount of misunderstanding about how the passage of the Agriculture Improvement Act of 2018 (or the “2018 Farm Bill”) affects the legality of selling industrial hemp-derived CBD products.” — Cannalaw



While the Farm Bill is a fantastic step forward for purveyors of hemp and CBD, nothing in the bill alters the FDA’s position or enforcement of cannabis derivatives. The Farm Bill and FDCA are completely at odds, all while the government shut down and no one was around to provide clarification.


The FDA did publish a press release which sends a rather ominous message that the FDA will be cracking down on hemp-derived CBD despite the legality of hemp provided by the Farm Bill. Clearly, more clarity is needed.


Yet, the possibility of another government shutdown looms over February. President Trump has agreed to temporarily reopen the government without any funding for the border wall, but has indicated that “if the committee is unable to reach an agreement to fund the border wall, the government will shut down again on February 15, 2019, or he will declare a national emergency to get the money for the barrier.”


The 2018 Farm Bill has opened a lot of doors, but the government shutdown(s) have the cannabis industry wondering whether or not it’s safe to walk through them.

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© 2017 by Rachael Z. Ardanuy, Attorney at Law, P.C.