Some South Carolina merchants found out the hard way last month that state law prohibits them from selling unprocessed hemp flowers when products containing the flowers were confiscated by the State Law Enforcement Division. Their losses underscore the need for national legislation to clarify the legal boundaries of the booming CBD business, now governed by an inconsistent patchwork of state laws and so far exempt from federal pure food and drug laws.
Cannabidiol, or CBD, is a non-psychoactive product of both the hemp flower and marijuana. Although it is legally exempt from control, CBD has properties that, while not yet fully defined, appear to have beneficial health effects.
While the hemp flower is rich in CBD, it has only a trace element of THC, the major psychoactive element of marijuana. Last year, Congress legalized growing hemp and state legislatures enacted a hodgepodge of laws to license production. There was a predictable rush to produce the plant because of the high value of its flowers used to make CBD products, including oils and other products used for a wide range of inhalation, oral consumption and skin absorption products.
But the most rapidly growing market in some areas, including South Carolina, has been for smoking the unprocessed flower. State law enforcement agencies have been quick to point out a problem. As the North Carolina State Police told the state legislature there last year, hemp flowers are indistinguishable from illegal marijuana flowers except in laboratory tests for THC content. This greatly complicates enforcing drug laws against marijuana possession and sale.
The South Carolina Legislature addressed this issue in March when it passed a bill removing a number of restrictions on hemp production. The bill also said hemp growers could not sell unprocessed hemp flowers except to licensed processing firms. On July 10, state Attorney General Alan Wilson issued an opinion saying it was illegal for anyone else to possess the unprocessed flowers, but he left the definition of “unprocessed” to be decided by further legal proceedings. That left merchants selling packages of pre-rolled hemp flowers unsure of their legal rights, and they had a deadline of midnight Wednesday to remove unprocessed hemp products from their stores.
Another area of the law regarding CBD that needs clarification is its use in food products. The U.S. Food and Drug Administration has decided that CBD cannot be legally added to any human or animal food product. But former FDA Commissioner Scott Gottlieb said in a recent op-ed in The Washington Post that the agency is under a lot of pressure to yield on this position. Mr. Gottlieb rightly added that while progress is possible, it has to take place on the basis of careful scientific testing of CBD’s effects on humans.
Congress should should move briskly to help speed the process of FDA approval of CBD products and clarify the definition and legal status of unprocessed hemp flowers. That new oversight and legal clarity would be a boon to South Carolina hemp farmers, CBD users and law enforcement.