Across Massachusetts, customers can find CBD everywhere, from the small shops selling CBD up and down Newbury Street to the products lining shelves at national stores like Bed Bath & Beyond and Sephora.
CBD has become so common that you can even buy gummies in the small corner store in the lobby of the office building that houses the Boston Globe.
The popularity of cannabidiol, which can be extracted from marijuana or hemp — two different varieties of the cannabis plant — has prompted questions and confusion from consumers who want to make sure their products are safe, legal, and reliable.
But the overarching question remains: Is this even legal?
Now, the state has an answer.
The Department of Public Health and the Department of Agricultural Resources said recently that certain types of CBD are illegal under state regulations. The new policies outline legal uses for hemp and its derivatives, and said two common uses of CBD are now prohibited: “any food product containing CBD” and “any product containing CBD derived from hemp that makes therapeutic/medicinal claims,” according to a June 12 notice from the Department of Agricultural Resources.
Those two restrictions affect a vast majority of products on the market, from gummies that claim to help with pain management to oils that allege to help with sleep.
So why are these products still on shelves? The answer, it seems, comes down to enforcement.
Local boards of health would ultimately be responsible for deciding enforcement strategies in their own cities and towns, according to spokeswomen for each state agency.
Brendan Moss, a spokesman for Governor Charlie Baker, reiterated that sentiment, noting that the policies were released “consistent with previously announced federal policy.”
That answer has left some hemp cultivators, many of whom are already selling CBD products, concerned about what it means for them.
Jonathan MacDougall, who cofounded BayGrown Farms, a licensed hemp farm in Rochester, is worried he could lose his cultivating license if he sells CBD, so he has directed suppliers to pull his product off the shelves for now — even for suppliers outside of Massachusetts.
He’s been working with the newly formed MASS Hemp Coalition, which has put together a series of recommendations for the Department of Agricultural Resources. Among other requests, the coalition wants a clear set of regulations for hemp cultivators and retailers to follow. They also want state officials to let hemp cultivators and CBD retailers continue operating while those regulations are figured out.
“We’re not trying to be hostile with them. Obviously we want to be able to be compliant with them. That’s the last thing we want to do is do something illegal,” MacDougall said. “We just want guidelines to follow and guidelines that make sense from the beginning to the end.”
A bill filed in the Massachusetts House last month would reverse the guidances recently released by the state, enforcing, among other things, that:
1) Hemp-derived cannabinoids like CBD “are not considered controlled substances.”
2) And products that contain CBD that are “intended for ingestion are to be considered foods, not controlled substances.”
The bill could significantly help hemp cultivators, many of whom had hoped the 2018 Farm Bill, which legalized industrial hemp federally, was a turning point for the industry. Though the state agricultural department says farmers can still sell hemp seed, hulled hemp, and a variety of other hemp products, cultivators say those sales likely wouldn’t be profitable enough to keep them in business.
MacDougall, and so many farmers like him, thought the federal legalization of hemp meant all the compounds within hemp were legal, too.
The US Department of Agriculture has said as much, writing in a legal opinion in May that the Farm Bill has taken effect — and hemp has become legal — without any other federal agencies having to take action.
But the Farm Bill also gave oversight of CBD regulations to the Food and Drug Administration, which has only approved one drug containing CBD — Epidiolex, used for severe forms of epilepsy. Despite the USDA’s ruling on hemp, the FDA has told consumers that CBD is illegal in food or dietary supplements until the agency issues its final rules on the substance, which could take three to five years.
It wasn’t until this month that the state seemed to uphold that FDA ruling.
“The state never said anything. The Farm Bill went through, and everybody was like ‘Game on,’” MacDougall said. “They’ve made it into the Wild, Wild West by making it federally legal but leaving it up to the state, and then the state saying you can’t do anything.”
In other states, a game of tug of war has played out over the legality of CBD. Large corporations are jumping on the CBD bandwagon, creating products that, in some cases, sit just on the outskirts of FDA oversight. (Cosmetics, for example, are not subject to FDA pre-market approval.)
Meanwhile, some law enforcement agencies are still raiding CBD stores and arresting people for possessing CBD. In one case, a 69-year-old woman was arrested at a Disney World security checkpoint in April after a guard found CBD oil in her purse. Those charges were later dropped.
State authorities say similar arrests are unlikely to happen in Massachusetts because the state agricultural department’s statement on CBD did not delineate any criminal charges or repercussions for consumers.
“We have this mass confusion,” said Sarah Lee Gossett Parrish, an Oklahoma-based civil litigation attorney who specializes in cannabis law. “And it’s compounded by the fact that nationally, we have a patchwork of state laws.”
Of course, there’s an irony in being allowed to buy marijuana-derived CBD at one of the state’s 20 recreational marijuana stores when most hemp-derived CBD products are being considered illegal.
That’s not lost on those who spent years working to bring legal marijuana to Massachusetts, said Will Luzier, the former campaign manager for the ballot initiative that legalized marijuana in Massachusetts in 2016.
“It’s certainly anomalous that you can walk into a dispensary and purchase not only THC, but products that contain CBD and THC,” he said, “but you can’t walk into another store and buy a product that’s just CBD, even though CBD is not psychoactive.”