The federal government consists of numerous departments who aren’t always in complete agreement.

FDA is the main federal agency asserting CBD is illegal. Trump signing the Farm Bill only removed CBD from DEA control. TSA allows you to fly with CBD, with special instructions. You can mail CBD with the USPS. FTC says no drug claims. VA allows FDA approved CBD. CBD is banned in the Military.

Let’s take a look below and see how each federal agency is specifically handling the legality and enforcement of CBD for general public consumption.

CBD at the federal level is a complex regulator playground with some agencies in conflict with how they’re treating the legality of CBD.

The federal government has numerous branches that make up the entire federal umbrella.

Different agencies control CBD in different ways.

Federal agencies potentially controlling some aspects of CBD.

  1. Federal Drug Administration (FDA)
  2. Federal Food, Drug, and Cosmetic Act (FD&C Act)
  3. Federal Trade Commission (FTC)
  4. Dietary Supplement Health & Education Act (DSHEA)
  5. National Advertising Division (NAD)
  6. Drug Enforcement Agency (DEA)
  7. United States Department of Agriculture (USDA)
  8. Transportation Security Administration (TSA)
  9. Environmental Protection Agency (EPA)
  10. United States Postal Service (USPS)
  11. Center for Food Safety and Applied Nutrition (CFSAN)
  12. Veterans Affairs (VA)
  13. Department Of Defense (DOD)

Below, we’ll take a look at how each federal agency is — in some way — controlling the flow of CBD.

Federal Drug Administration (FDA)

The role of the FDA is to protect the health of the public by regulating over $1 trillion worth of various products and verifying they’re safe for human and animal consumption or application.

Products the FDA regulates are drugs, medical devices, biological products, food, cosmetics, and more.

How the FDA aims to protect the public health is by overseeing the manufacturing process and how products are marketed to the public.

By taking responsibility for innovation, the FDA aims to make products it regulates cheapers, increase the effectiveness, and safety.

In order to deliver on their role, the FDA helps the public receive accurate information based on science.

Did The 2018 Farm Bill Legalize CBD?

Upon the signing of the 2018 Farm Bill, the FDA still maintains explicit authority in the regulation of all cannabis and compounds extracted from cannabis.

How the FDA specifically maintains regulatory control is described in the FD&C, as well as in section 351 of the Public Health Service Act (PHS Act).

The Federation Of American Scientists (FAS) issued a document reiterating how the Farm Bill only removed CBD and hemp from the DEA’s schedule one controlled substance act.

This FAS document highlights further obstacles of the FDA preventing CBD from being added to food, dietary supplements, and to marketing them appropriately.

Since certain rules can take a long time for the FDA to initiate, due to the various complex issues surrounding CBD, the former FDA Commissioner recommends a legislative option might be more efficient.

Former FDA commissioner Gottlieb suggests Congress can allow only specific amounts of CBD in dietary supplements.

One of the main concerns of the FDA are drug claims about CBD products.

As per the FDA, claims are statements made about the product showing the active component can lower disease risk and other health conditions.

This can include claims involving diagnosing a disease, curing a disease, mitigating a disease, the treatment of the condition, health benefits, therapeutic uses, etc.

Authorized health claims

If you’re going to make a health claim, the claim must be evaluated by the FDA to receive authorization.

Since 1990, the FDA has only provided authorization of 12 health claims.

In order to receive authorization from the FDA to make a health claim, your claim must be supported by scientific evidence meeting the Scientific Agreement Standard (SSA).

Qualified health claims

However, if there’s “some” scientific evidence that doesn’t necessarily stand up to the Scientific Agreement Standard — you can make a qualified health claim.

When making a qualified health claim, you must accurately communicate the scientific evidence that currently is supporting your claim.

Qualified health claims can’ be false nor can they mislead consumers in any way.

To verify your claim is a qualified health claim, the FDA has established Interim Guidance to make such claims.

In order to receive either an authorized or qualified health claim, the FDA is required to review the claim before going to market.

Yes. Epidiolex is the only CBD product that’s approved by the FDA as a prescription to treat two rare types of epilepsy.

Marketing CBD as a dietary supplement is illegal.

It’s also illegal to market CBD when adding it to foods.

For the last several years, the FDA continues issuing warning letters to various companies who are marketing the unapproved new drug — CBD.

The FDA also reviewed CBD for Over-The-Counter (OTC) use and did not approve CBD for use as an OTC.

In order to receive approval from the FDA to market CBD, it has to go through a New Drug Application (NDA) approval process.

The FDA continues offering guidance for developing drugs from cannabis, as well as guidance for how to conduct clinical research for compounds derived from cannabis.

Again, the primary role of the FDA is to assist you in making sure you’re bringing CBD to the market that’s safe, effective, and high quality — based on scientific research.

What does the FDA think about states selling CBD?

Even though several states are allowing cannabis and CBD to be sold, the FDA is very aware of this.

With over 700 clinical trials for CBD, the FDA’s stance is there’s not enough scientific information to conclude that CBD is safe to be added in food.

As one of the most researched and interesting molecules, CBD continues to play an ongoing tug of war between various levels of government, law, and local enforcement.

The FDA also claims that with the current information available, they can’t conclude that CBD is Generally Recognized As Safe (GRAS).

A press release issued by the FDA in November 2019 mentions the FDA is exploring various potential pathways to allow for the marketing of CBD products.

With the FDA acknowledging the vast public interest in CBD, the FDA will continue to regulate CBD as they would any other product they regulate.

Since the FDA is investigating CBD as a new drug, it currently can’t be included or defined as a food or dietary supplement.

Some CBD products the FDA has tested contained various contaminations and toxicities.

Other safety concerns the FDA has with CBD includes CBD causing potential harm to the livery, interactions with numerous other drugs, and other side effects (drowsiness, mood changes, and diarrea).

The FDA will continue sending out warning letters to CBD companies making medical claims, adding CBD to food, or marketing CBD as a dietary supplement.

According to the FDA, it depends.

Depending on how the CBD product is “intended” to be used, how it’s labeled, and how it’s marketed — determines on whether or not you can legally sell CBD products.

In order to sell CBD legally, your CBD products must meet the 2018 Farm Bill definition of hemp and comply with any and all other laws (such as the FD&C Act and local state laws).

For example, if you’re going to sell CBD products in Idaho, Idaho hemp CBD laws explicitly state that your CBD products must contain no detectable amounts of THC.

If Idaho authorities detect any tiny trace amounts of THC in your CBD products, they’re considered illegal marijuana.

Certain parts of the FD&C Act might have a potential impact on whether or not your CBD products are legal.

Because CBD is in the process of an Investigational New Drug (IND) application, CBD can be marketed as a dietary supplement.

When adding CBD to as an ingredient to cosmetics, you do not need FDA premarket approval.

How Does The FDA Enforce Regulations?

Types of FDA enforcement action can vary depending on the degree of violation and and nature surrounding the violations.

How the FDA can enforce its regulations can be as simple as them sending you a letter explaining your specific violation — including corrective actions you must take.

Failure to comply to the FDA might result in them fining you, seizing your non-compliant products, and in extreme cases criminal charges.

If a violation is severe enough, the FDA has the power to prosecute you at the criminal level.

FDA criminal felony prosecution can result in being fined up to half a million dollars, if a situation results in a death due to your violations.

Federal Food, Drug, and Cosmetic Act (FD&C Act)

To list a few standing FDA regulations controlling CBD include: (FDA.gov)

Center for Food Safety and Applied Nutrition (CFSAN)

The role of the CFSAN is to support the FDA’s mission in drug, product, and food safety by targeting unsafe products through modern tracking methods.

In 2019 & 2020, the CFSAN’s office issued several warning letters to CBD companies in violation of FDA regulations.

Federal Trade Commission (FTC)

The role of the FTC is to regulate and protect consumers from deceptive or fraudulent advertising.

According to the FTC website, certain CBD companies have been making drastic health claims that are in violation of policy.

In order to make a claim about the effects of CBD, the FTC asserts that advertisers are required to have proper “sound” science.

Sound science is the basis of any health claim in relation to CBD.

The FTC echos the FDA in stating you can’t make ads that highlight CBD treating or curing any disease.

CBD companies are advised to even be careful with customers posting testimonials about how CBD may have helped a specific condition.

Advertisers need to make sure they’re backing up their claims with scientific evidence that’s both competent and reliable.

Dietary Supplement Health & Education Act (DSHEA)

DSHEA is a document of federal legislation defining the regulation of dietary supplements.

As regulated by the FDA, DSHEA covers both the manufacturing and distribution of dietary supplements and ingredients — that are either misbranded or adulterated.

The FDA and DSHEA are responsible for verifying dietary supplement safety and its labeling prior to marketing to consumers.

Then the FDA has the responsibility of enforcing action upon any dietary supplement products that’s been adulterated or misbranded — already on the market.

How the FDA defines dietary supplement ingredients are products containing: (source)

  • Vitamins
  • Minerals
  • Herbs
  • Other botanicals
  • Amino acids
  • Enzymes
  • Organ tissues
  • Glandulars
  • Metabolites
  • Extracts
  • Concentrates

Under the DSHEA umbrella, products are categorized as food, not drugs.

Unless it’s a New Dietary Ingredient not sold in the US before October 15, 1994, the product doesn’t need FDA approval or safety data evidence.

National Advertising Division (NAD)

The role of the NAD is to monitor all media in national advertising with the aim of enforcing accurate information.

If there’s a consumer complaint, the NAD then reviews the advertising to potentially take subsequent action.

In February 2020, the NAD referred a CBD company to the FTC for further review and then was followed up by another challenge by the Council For Responsible Nutrition.

Council For Responsible Nutrition (CRN)

The role of the CRN is to represent dietary supplements, functional food manufacturers, and ingredient suppliers — 

CRN has a mission of enhancing the climate for the development, manufacturing, and marketing dietary supplements, functional food, and nutritional ingredients.

One the CRN’s frequently asked questions section of their website, the CRN makes mentions that the FDA should allow CBD to be used as an ingredient in food as well as a dietary supplement.

Instead of being regulated as a drug, the CRN outlines several advantages for CBD to be regulated differently.

Since the public’s interest in CBD is continuing to thrive, recognizing CBD products as food or dietary supplements will allow more reasonable regulatory frameworks in the manufacturing, processing, and marketing of CBD.

Regulating CBD as a food or dietary supplement would allow the agency to enforce existing regulations, such as registering facilities, good manufacturing practices, security in the supply chain, ingredient additive compliance, and more.

With different agencies wanting different controls surrounding CBD, the current situation is described as a wild west like scenario consisting of abstract enforcements, oversights, and guidances.

In a press release issued in February 2020, the CRN calls for the FDA to follow the UK in how they’re establishing a clear “legal” pathway for CBD to be recognized and regulated as a dietary ingredient.

By both allowing the widespread distribution of CBD products, as well as attempting to hoard a monopoly over CBD as a new drug — the FDA is inviting risks to consumer safety by preventing responsible CBD companies to operate under existing dietary regulations.

Businesswire reports information presented by the president & CEO of CRN by commenting on the FDA’s warning letters unnecessarily alarming the public.

CRN president continues his extensive statement about how and why the FDA should regulate CBD as a dietary supplement.

Instead, the FDA is currently issuing lukewarm warning letters when the FDA could take drastic enforcement action.

The president of CRN concludes by mentioning how responsible CBD companies are already in full compliance with the law of dietary supplements.

Compliant CBD companies have data justifying and verifying their products are safe for consumers because they’re following good manufacturing practices, they’re registered, and they’ve established systems that report any serious adverse events.

Drug Enforcement Agency (DEA)

The role of the DEA is to 

After President Donald Trump signed the 2018 Farm Bill, certain changes were established in how the federal government regulates both the production and marketing of the hemp plant.

One primary change with the signing of the 2018 Farm Bill into law included the complete removal of hemp from the Controlled Substance Act (CSA).

This means, if the cannabis plant has less than 0.3% THC — when dry — it is no longer controlled by the DEA under the CSA.

However, just because the 2018 Farm Bill updated federal law, Idaho state hemp laws remain unchanged.

Furthermore, the Farm Bill didn’t impact any other federal agency with jurisdiction over CBD.

Unchanged Idaho hemp law says the hemp is only hemp if it has no detectable amounts of THC.

If hemp has any detectable amounts of THC — even if it’s less than 0.3% THC — it’s considered illegal marijuana by Idaho authorities.

United States Department of Agriculture (USDA)

The USDA published a legal opinion letter involving the production and cultivation of hemp.

Updates to the 2018 Farm Bill further allowed hemp to be cultivated in states that have approved plans.

Furthermore, instead of registering with the state department of agriculture, the 2018 Farm Bill now requires producers to register their hemp production area with the Farm Service Agency (FSA).

On February 6, 2020, the USDA announces hemp crop producers can now have crop insurance against natural disasters.

Hemp crop insurance covers against the loss of hemp fiber, hemp grain, and/or hemp for CBD.

Losses can include low yield, crops that were destroyed, and more.

In order to be eligible for federal hemp crop insurance, you must have a minimum of five acres if you’re growing hemp for CBD or a minimum of 20 acres of hemp for grain and fiber.

The 2018 Farm Bill also made hemp crop financial available via the Farm Credit System Banking Institutions.

Transportation Security Administration (TSA)

The role of the TSA is to provide security to the freely traveling public.

According to the TSA website on Medical Marijuana, you’re allowed to bring medical marijuana via carry on or through a checked bag.

Furthermore, the TSA website states cannabis products are legal if they contain less than 0.3% THC.

TSA security officers don’t search for any marijuana products, however, if they happen to discover any during a routine security screen, the TSA will refer the issue to law enforcement officers.

In certain states with more strict hemp laws, such as Idaho, the Twin Falls Police Department (TFPD) recommends you don’t bring CBD products on an airplane.

Officer Heart of the TFPD recommends you wait until you arrive at your final destination before you purchase your CBD.

Environmental Protection Agency (EPA)

The role of the EPA is to protect human health and the environment by ensuring clean air, clean land, and clean water — as well as ensuring marketplace chemicals are safe.

On the EPA website, pesticide registration, the EPA allows 47 different pesticide chemicals for the use adding to hemp.

United States Postal Service (USPS)

In June, 2019, the USPS published a revision of the hemp products that can be shipped through the mailing system.

Due to the overwhelming inquiries of those wanting to use the mailing system to transport CBD, the USPS published clarification on the specific conditions that will allow the mailing of CBD.

The conditions the USPS set forth that would allow CBD to be transported by mail involve a state license authorizing the production of hemp and less than 0.3% THC in the hemp products.

Under these conditions, the USPS authorizes interstate commerce of hemp products as defined under the 2018 Farm Bill.

Even though the USPS doesn’t require specific documentation at the time of mailing CBD, they might require proof of documentation at a later date.

Veterans Affairs (VA)

The role of the VA is to provide veterans healthcare benefits, help with transitioning back into civilian life, and much more.

According to the VA website, VA clinicians are only allowed to prescribe CBD that’s been approved by the FDA.

However, if you are taking a CBD product, or any other cannabis, you won’t be denied VA benefits.

The VA recommends you discuss your usage with your VA provider with the intention of having more information in your treatment plan.

Your VA clinician is also not allowed to recommend any medical marijuana products, nor will the VA pay for any medical marijuana products.

However, VA scientists are allowed to research the risks and benefits on marijuana.

If you are a veteran and also an employee at the VA, you are subject to federal law and can be drug tested.

Department Of Defense (DOD)

The role of the DOD is to protect the security of the USA by providing military forces to deter war.

In a memorandum issued on February 26, 2020, the DOD’s Operation Supplement Safety prohibits all active duty and reserve members from purchasing any hemp products.

Products made by hemp or derived from hemp, such as CBD, are prohibited.

Even if the hemp product contains no detectable amounts of THC, the Military Departments are enforcing punitive general orders under Article 92.

Exceptions to this order explicitly state that you can still purchase and utilize hemp products such as hemp rope or hemp clothing.

Other exclusions will allow service members to consume CBD that’s been approved by the FDA, such as Epidiolex — only if you have a valid prescription.

Final Thoughts

With the legality of CBD at multiple levels of the federal government, there are hundred of cannabis companies seeking employees.

Cannabis employment and business opportunities are going to be in it’s infant stage for a long time to come.