THE US-ISRAEL LEGAL REVIEW 2019

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The US-Israel Legal Review 2019 55
(Epidiolex) that were the subject of substantial
clinical investigations before being marketed as
foods or dietary supplements. However, a careful
reading of the statement suggests the FDA’s
enforcement priorities involve only the most
serious health claims.
STATUS QUO: APPLICABLE STATE LAWSFrom now until one year after the Secretary of
Agriculture establishes the “federal plan,” the 2014
Farm Bill remains in effect. Here’s an overview of
the status quo until then.Before passage of the 2018 Farm Bill, many
states enacted their own Hemp-related statutes
in accordance with the 2014 Farm Bill, which
permitted qualifying individuals and entities to
grow, cultivate and market industrial Hemp for
researchpurposes only, through state agriculture
pilot programs. Because the 2014 Farm Bill
provided so few details about its limitations and
restrictions, including what qualifies as “market
research,” five federal agencies – USDA, The
Department of Justice, DEA, FDA and Department of
Health and Human Services – filed a Statement of
Principles on Industrial Hemp in an effort to clarify
the issue. In particular, the statement explained
that the 2014FarmBill permits the sale of industrial
Hemp in states with an agricultural pilot program
for the purpose of market research, but prohibits
general commercial activity, as well as interstate
transportation of Hemp plants or seeds.The upshot is that the 2014 Farm Bill and most
state analogs provide for the growthand cultivation
of industrial Hemp, but not the commercial sale
or distribution of Hemp or Hemp products. This
creates significant uncertainty for companies
seeking to sell or distribute such products today,
made even more so by the handful of states whose
Hemp laws do contemplate the sale of Hemp or
Hemp products. The 2018 Farm Bill makes it clear
that it does not prohibit interstate commerce. At
the very least, any company wishing to get into
the Hemp space today should make certain that its
suppliers comply with applicable state Hemp laws.
CBD CONTROLLED SUBSTANCE QUESTIONSHemp-derived CBD-containing products face a
separate question, which is the applicability of state
controlled substances laws. Can states classify
Hemp as a controlled substance despite the 2018
Farm Bill? Before the 2018 Farm Bill, many states
carved out an exception to Marijuana drug laws for
industrial Hemp produced in state programs run in
accordance with the 2014 Farm Bill. They did this
in four ways:
• Amended drug laws to specifically excludeindustrial Hemp grown in accordance with state
pilot programs from the definition of Marijuana.
• Included a provision in Hemp laws removingindustrial Hemp grown in compliance with state
pilot programs from the definition of Marijuana.
• Included a provision in Hemp laws that providedimmunity from prosecution if the grower
complied with state law.
• A combination of the three.
States that have tied thedefinitionof “Marijuana”
to compliance with their state Hemp laws are in
question because, under the 2018 Farm Bill, Hemp
is not a controlled substance even if an entity does
not comply with a state Hemp program.All of this highlights the fact that despite the
regulatory environment remaining very much in
flux, the current state of the law has opened a path
of opportunity for companies hoping to sell Hemp
or CBD-infused products in the US. Until the federal
government enacts its Hemp plan, and a year
passes, it will be especially important to research
the applicable state laws and proceed carefully.
CBD PRIMERHemp andMarijuana come from the same species of
Despite the regulatory
environment remaining very
much in flux, the current state
of the law has opened a path of
opportunity for companies hoping
to sell Hemp or CBD-infused
products in the US.