The Legal History of CBD

January 10, 2020 Introduction to the Legal History of Hemp and CBD

Aside from cave dwellers, just about everyone in 2019 has heard of CBD and hemp farming. Maybe you have a friend or family member whose career is positioned somewhere in the booming industry, or maybe you just find it interesting due to all the buzz around its numerous benefits. Regardless of your place in this conversation, one thing is for certain; the hemp revolution is happening and it is being televised. You need only browse over the results of quick google search to grasp the scale of the industry at hand. Companies are finding ways to insert hemp and/or CBD into just about anything you can imagine, and some things you probably some things you can’t--beers, soaps, linens, chocolates, teas, spices, and pet foods, just to name a few.
By 2017, reported sales in the US hemp industry had reached astronomical proportions at $820 million with $190 million coming directly from the hemp-derived CBD market. With economists predicting an even brighter future ahead, many of us question the reality of the situation. For one thing the industry is growing so quickly, and yet its foundation is wrought with misinformation and misunderstanding, most notably from the legalistic perspective. How in the world are tens of millions of products being sold when they contain THC? How is the legal, or is it even legal in the first place? What are the historical precedents set for addressing these issues?
Whether you are a newcomer to the world of hemp, or you are an old veteran, maintaining a command of the facts is crucial--and that’s what this article is meant to address. We will look at some of the most mind boggling misconceptions from the consumer, from the corporate world, and from policy makers. Exploring this area of the subject is important because there are elements of hemp’s history, which clarifies the government’s view of it, and thus will help you better understand and predict the future of the hemp industry.
To understand the legal reality of hemp in America, we must first turn our attention to its ancient origins. In consistent accounts of history, hemp is said to be one of the oldest industries on the planet dating back approximately 10,000 years. This figure is mindblowing, but is evidenced by early discoveries of pottery which used hemp as a method of fortification. The Columbia History of the World reports that the oldest relic of humans is an ancient piece of hemp fabric found in the area of today’s China, dating back to 8,000 BC. More ambitious historians have pondered the question of whether the hemp industry functioned as the catalyst for all agriculture as we know it.
Fast forward to the inception of America, and one will find that both presidents George Washington and Thomas Jefferson grew hemp. Most shocking of all in America’s history with hemp is perhaps this fact: Americans were, in fact, legally bound to grow hemp during the colonial era and early republic. Why? Because its uses were so many, and its value of a crop so immense, that it was seen as a crucial means of stimulating early societal prospects. So widespread was its acceptance as a pillar of agriculture that this mandate was nothing but commonplace in the colonization of America.
By 1937, however, Americans saw a total 180 on this perspective with the introduction of Marijuana Tax Act, which signaled a shift into the age of hemp and marijuana prohibition. Harry Anslinger, the act’s primary architect, instituted tax and licensing procedures that made hemp farming an unreasonably daunting challenge. During this time Harry Anslinger simultaneously mounted a anti-marijuana campaign which he promoted ceaselessly both at home and abroad.
World War II brought with it yet another 180 in the government's stance on hemp farming. During Pearl Harbor the country’s primary port for importing manila hemp was destroyed, which resulted in the government urging civilians to engage in hemp farming. The USDA produced a film entitled “Hemp for Victory,” encouraging farmers to do so combined with government subsidies provided by the newly formed War Hemp Industries Department. Subsequent efforts brought nearly a million acres of hemp farms into fruition throughout the midwest alone.
Sadly, by the war’s end the majority of hemp processing plants were shut down, and both the incentives and more reasonable hemp farming policies were erased, citing their implementation as a policy unique to wartime--a line of logic that might make sense if its chief subject were anything other than history’s most popular, and most harmless crop. The greatest fruition of these developments, however, was the government’s acknowledgement that industrial hemp and marijuana were distinct and separate varieties of cannabis, thus removing the criminal component of hemp farming in America.
Following this trend of total reversion of perspectives, this progress was given a shelf life and by 1970 hemp had actually been reversed through its reassociation with mairjuana under the Controlled Substances Act (CSA), which expressly categorized hemp as a Schedule I Illicit Substance. An astute reader though will notice that this act includes a specific exemption of hemp under the definition of marijuana. Why this exemption was neither observed nor practiced in popular law is mysterious. Conspiratorial accounts reference this fact as evidence for the government’s intention to keep hemp farming out of the public hands, reserving it for more sanctioned efforts of one group or another given the immense profitability of the crop. The validity of such accounts rests on circumstantial evidence and narratives of conjecture, however, given the seemingly ephemeral nature of legal rulings on hemp in America throughout the decades, such speculation is all but inevitable.
From 1797 to 1956 there were 20 official publishing concerning hemp and hemp farming, covering everything from the intricacies of farming science to the endless potential uses. All this to indicate that underpinning any other issue here was the government’s inability to communicate with itself about the hemp industry to any degree of productivity, instead falling into trends of inaction, misinterpretation, and hypocrisy. In other words, the principle of Hanlon’s Razor may be most applicable here. “Never attribute to Malice that which can adequately be explained by stupidity.”

Another jump in history will bring us to more modern realities of the hemp industry. By 1998 the US began importing food-grade hemp seed and hemp oil, and by 2004 we see an official and favorable ruling in the courts, which to this day acts as the primary impetus for understanding the legality of the hemp industry. This court case was that of ‘Hemp Industries Association vs. DEA’ and its ruling set precedent for the permanent protection of the sale of hemp food and body care products in the US. Despite the legal strength of this precedent, the court of public opinion continued to cast shade on this industry during this time.
In 2007 hemp farming licenses were issued to two North Dakota farmers, representing the first of licenses of this kind to be issued in 50 years. Seven years later in 2014 we see the final piece of the puzzle concerning the legal foundation for the modern hemp industry. At this time President Obama signed Farm Bill, which allowed research institutions to assume a pivotal role in hemp farming projects. The next year the legal grounding was applied to mainstream products of industry through the 2015 Industrial Hemp Farming Act, which would effectively remove all federal restrictions on the production of industrial hemp, thus legalizing its cultivation as well.
In 2018 this bill was passed, which then expressly removed hemp products and their derivatives such as CBD from the categorizations set forth in the Controlled Substances Act. The passing of this bill represents the culmination of over one hundred years of American legal history, and all of the decades of misinformation and prohibition therein. Today we have groups of celebrities who adamantly support CBD use and the hemp industry as a whole. You can find CBD products and hemp products at just about any market in the country, and the online marketplace is seemingly infinite. While unfortunately no legal issue is cut and dry in the United States--due to the necessary complications implicit in our principles of legal interpretation--we can at least say that in 2019, CBD and hemp are totally legal for us the consumer.


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