Signed as Law: West Virginia Bill Maintains Legal CBD Sales Despite Ongoing Federal Prohibition

By Mike Maharrey

CHARLESTON, W.Va. (April 15, 2019) – Last week, West Virginia Gov. Jim Justice signed a bill into law that modifies the state’s hemp licensing program and ensures the sale of CBD can continue in the state. This will not only open up markets in West Virginia, but also takes a crucial step given the FDA’s continued regulation of CBD.

Del. Gary Howell (R-Keyser) introduced House Bill 2694 (HB2694) on Jan. 28. The new law makes changes to the state’s hemp licensing program to conform it to the legal environment created when the federal government legalized hemp last year.

The House passed HB2694 96-2. The Senate approved the measure 33-1. With Gov. Justice’s signature, the law will go into effect June 7.

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In practice, the new law won’t change much. In 2017, West Virginia removed provisions in its hemp program restricting it to research only. From that point, any person with a license was authorized to plant, grow, harvest, possess, process, sell, and buy industrial hemp. This directly contradicted federal law at the time that limited hemp production to research purposes only and prohibited commercial production. With commercial hemp production fully legalized in West Virginia back in 2017, the passage of HB2694 merely ensures farmers in West Virginia will be able to continue producing hemp as they have since that time.

But the new law won’t be without any practical effect. HB2694 includes important provisions related to CBD.

It establishes that hemp-derived cannabinoids, including CBD, are not controlled substances, and products intended for ingestion containing CBD are considered foods, not adulterated products. Under the new law, derivatives of hemp, including hemp-derived cannabidiol, can be added to cosmetics, personal care products, and products intended for animal or human consumption, and the addition is not considered an adulteration of the products. HB2694 also allows the sale of hemp products and CBD produced in other states as long as those states maintain substantially the same requirements for processing as West Virginia.

These provisions ensure the state will not ban the sale CBD or CBD products. This is crucial because despite removing the plant from the list of controlled substances late last year, the federal government still prohibits the sale of CBD products under FDA rules.

2018 Farm Bill and CBD

With the passage of the farm bill, the federal government now treats industrial hemp as an agricultural commodity instead of a controlled substance. While the DEA will no longer have the authority to regulate hemp, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, the passage of the farm bill does not mean CBD will now be federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

To date, the FDA has only approved one medication with cannabidiol as an active ingredient – Epidiolex for the treatment of seizures. But the FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, that designation means the FDA maintains full control over the substance and it cannot be marketed as a “dietary supplement.” The agency maintains that the sale of CBD or any food products containing the substance is illegal.

At this time, the agency hasn’t changed its position on CBD. In a recent congressional hearing, FDA Commissioner Scott Gottlieb said he understands that Congress wants a pathway to CBD availability, but said “it is not a straightforward issue” due to the fact that the agency has approved CBD for treatment of epilepsy and it is ““subject of substantial clinical investigation.” Both of these factors prohibit CBD from being sold as a “health supplement” and from being added to food.

Gottlieb said, “the law does allow us to go through a regulatory process and go through a notice and comment rule-making to establish a framework to allow it to be put into the food supply.” He said the first step would be a public meeting “sometime in April”

In effect, the agency can continue to enforce these same rules even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

With the enactment of  HB2694, West Virginia will not interfere with the sale of CBD products produced in the state regardless of continued federal prohibition.

Without state cooperation, the FDA will likely have trouble regulating it in West Virginia.

Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE