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2019 CBD State of the Union

Written By Ellese Symons Jul 13th 2022

Tags:

CBD EDUCATION

CBD PRODUCTS

CBDISTILLERY

NEWS

Table Of Contents

The Journey Begins

In order to accurately recap this year’s progress and takeaways, let’s first look back at 2014, when CBD was truly beginning to appear on everyone’s radar. Until the signing of the 2014 Farm Bill, hemp cultivation had been illegal in the U.S. for decades. Not only did the 2014 Farm Bill open the doors for hemp cultivation, it also established the guidelines to differentiate hemp from marijuana. To be legally classified as industrial hemp, the plant must contain 0.3 percent THC or less. While this was a huge win for industrial hemp advocates everywhere, it was still extremely difficult for businesses to begin product offerings.

Further handcuffed by the DEA’s opinion that industrial hemp remained on the list of federally banned substances, businesses had serious difficulties with establishing common business practices; access to traditional banks and financing, industrial extraction, merchant processing, Enterprise Resource Planning (ERP) software and relationships with mass retailers remained difficult if not completely unattainable.

Four long years later, this whisper of an industry evolved into a roar with the passing of the 2018 Farm Bill. While the 2014 Farm Bill brought industrial hemp cultivation back to American soil, it was the 2018 Farm Bill that explicitly removed hemp from the Controlled Substance Act (where it was classified under the umbrella as marijuana, LSD and heroin). This in turn removed hemp from the Drug Enforcement Agency’s (DEA) jurisdiction and their ability to interfere with congressional intent.2 It’s important to remember that CBD’s legal status is dependent not only on federal law but also on the state in which you reside. This Federal descheduling truly opened the door for the industry to begin to flourish.

“The 2018 Farm Bill was like the key that finally unlocked the handcuffs. Unshackled and free to roam, the industry was finally able to start adding color to the grey area surrounding it.” -Chase Terwilliger, CEO for Balanced Health Botanicals

The passing of this monumental bill created a snowball effect allowing other significant legislation to follow. For example, the House of Representatives recently made considerable progress on the to follow. For example, the House of Representatives recently made considerable progress on the Secure and Fair Enforcement (SAFE) Banking Act, which would provide banks and credit unions with additional clarity when servicing cannabis companies that want to open accounts for transactions such as paying for operating invoices. This is an important federal legislative advancement that will differentiate the CBD industry from the marijuana industry, enabling financial institutions previously unwilling to work with industrial hemp companies for fear of association with the marijuana business, to open their doors to the CBD industry.

With CBD business practices federally legal across the nation, even Federal agencies known for their strict policies like the Transportation Security Administration (TSA), were compelled to update their practices and policies. In an advisory statement for travelers, the TSA said, “products that contain hemp-derived CBD oil, or are FDA-approved, are generally legal and can fly.” They also updated their “What’s okay to bring?” website page to include more guidelines for acceptable forms of hemp derived-CBD oil.¹⁷

While the 2018 Farm Bill provided support for many components of the CBD industry, provisions in the law as related to the U.S. Food and Drug Administration’s (FDA) authority over all cannabis and cannabis-derived products continues to cause considerable confusion, particularly when determining whether a product is sourced from marijuana or hemp. The FDA maintains regulatory oversight of food, cosmetics, drugs and other products within its jurisdiction that have CBD, or the cannabis plant itself as an additive.

According to survey data compiled by the US- based Grocery Manufacturers Association (GMA), roughly three quarters (76%) of Americans may falsely believe that the FDA approves commercial CBD products. Consumer confusion grows as they presume that thousands of new products are marketed with FDA approval.¹² Though the FDA is still working on developing its regulations, the agency’s primary concern centers on monitoring unsubstantiated medical claims and working in conjunction with the Federal Trade Commission to stop deceptive marketing practices.

The agency is committed to taking enforcement action against any companies making medical claims, selling its products as a supplement, or adding CBD to food. Hemp-derived products are not approved by the FDA as a medication or cure for any disorder (with the exception of the prescription Epidiolex, approved in 2018), and legality is left to the discretion of individual states.

New Opportunities Attract Big Businesses

With businesses now having access to banking and standard merchant processing through future bills such as the SAFE Banking Act, industrial extraction partners, software developers and traditional mass retailers took notice and decided to get involved.

When the federal government lifted restrictions on hemp cultivation, there was a significant increase in the number of industries incorporating industrial hemp and hemp-derived products into their business model. Farmers were converting their fields from traditional crops to industrial hemp; skincare companies were offering hemp-infused products to their customers and vape companies began opting for private label CBD. This all led to an increase in the number of retailers expanding their inventory to include CBD.

In 2014, when the industry was new, CBD sales generated $49 million. By the end of 2018, that number was $264 million. A 2016 article posted in the Hemp Business Journal estimated sales could top $2.1 billion by 2020 with predictions for the industry overall from the Brightfield Group seeing numbers as high as $22 billion by 2022.⁵

Just a few of the many retailers selling or planning to sell CBD products include:6

Albertsons Ulta
Neiman Marcus
CVS Pharmacy
Walgreens
Kroger
Vitamin Shoppe
GNC
Sephora
TJ Maxx

A huge concern for consumers purchasing their products from these retailers comes from the lack of education on regulation. To combat this, retailers currently selling CBD products are vetted to ensure that the FDA’s stringent guidelines are followed. Certifications like U.S. Hemp Authority™ Certification, which provides the high standards, best practices and self-regulation for consumers and law enforcement to ensure that hemp products are safe, must be obtained by the CBD companies. Many industry professionals believe with clear, consistent FDA regulatory guidelines, product quality will standardize and benefit the industry as a whole, but the process will take time. Currently, various government organizations are working on:

A regulatory path for the use of CBD in food and dietary supplements (FDA)⁸
Determining the safety of continued and cumulative exposure to CBD (FDA)⁸
Developing organic practice guidelines for hemp production (USDA)⁹
Assessing the integration of hemp into cropping systems (USDA)⁹
Developing clear, reliable THC testing standards (USDA)¹⁰

Time to Advertise

Previously, no traditional avenue of marketing or advertising was willing to work with the cannabis industry, but that all changed with the descheduling of CBD. The online traffic driven by those genuinely curious about CBD represented numbers advertisers could no longer ignore.

“Three years ago, there was essentially no one searching about CBD online, but now there are an estimated 6.4 million unique searches each month,” stated study co-author Dr. John Ayers, Vice Chief of Innovation in the Division of Infectious Disease and Global Public Health at the University of California, San Diego (UCSD), in a recent university release.¹⁵ To put this in perspective, cannabisMD, a non-advocacy educational platform, pulled data from user searches across the web and social media platforms to find that CBD is currently more searched than hugely popular searches like Kanye West, The NBA, Taylor Swift and more.¹⁶

Though large platforms like Facebook, Google, Amazon, Instagram and others, still have extremely strict policies on advertising CBD due to lack of FDA regulations, the spike of interest in CBD has caused breakthroughs on more traditional avenues like radio, print advertisements, billboards, out of home and some social media platforms.

To paint a picture of just how difficult marketing CBD currently is, first imagine a car salesman selling a vehicle with the potential to positively affect someone’s life in a major way. So, what’s the catch? Well you can’t directly speak to any of the car’s benefits and you surely can’t advertise on any conventional platforms. Sure, this shiny, new vehicle has leather seats, a sunroof, Bluetooth and a 5-star safety rating, but all you can say is that it has the potential to get you from point A to point B. Describing CBD has similar limitations. You may only advertise the potential benefits without making even a sliver of any medical claim about what CBD can provide you. This challenge, while extremely difficult to navigate, sparked a level of ingenuity among the companies within the space. Many companies spent the year building a stock of brand ambassadors who advocate their products for them, affiliates who are able to accurately review their products, and ad campaigns designated to emphasize credibility and quality, in order to set themselves apart from others via print, radio, online and the few available social media outlets.

These unconventional marketing avenues proved to truly make an impact as it’s nearly impossible to turn on the news without seeing a story about CBD. However, with over 3,000 companies currently in the space clawing for attention, a problem develops when these companies compete for a finite amount of advertising opportunities. Companies desperate for an edge over their competitors inevitably make false or misleading claims that taint the overall image of CBD products. Over the past few years, the FDA has issued warnings to numerous companies selling products that do not contain the levels of CBD they claimed to contain or making unlawful medical claims.⁷ As with any subject with too many unknowns surrounding it, the solution is the continued emphasis of transparency, research and the proliferation of educational materials.

Educate, Rinse and Repeat

Just how serious is this lack of education? According to research from the Grocery Manufacturers Association, four-in-ten Americans who have heard of CBD believe it’s another name for marijuana. More than half think it can get you high and 76 percent believe CBD is regulated at the federal level. ¹⁴

Sadly, at the moment there isn’t enough educational material on the topic to ensure unscrupulous manufacturers are not taking advantage of consumers. There are some key takeaways to help stop this spread of misinformation.

Firstly, unlike tetrahydrocannabinol (THC), a cannabinoid found primarily in marijuana, CBD (cannabidiol) does not produce any intoxicating or “high” effects. This means users can experience its benefits without disconcerting feelings of lethargy or dysphoria. Secondly, CBD interacts with the Endocannabinoid System (ECS), which is a collection of cell receptors and their corresponding molecules (agonists) in the human body. The ECS is responsible for regulating and maintaining many key functions of the human body. Lastly, hemp and marijuana are terms often used interchangeably to describe any cannabis plant or its derivatives. While they have many different chemical properties, according to the federal government, industrial hemp includes the plant Cannabis sativa L. and any part or derivative with a tetrahydrocannabinol (THC) concentration of no more than 0.3 percent on a dry weight basis.

“The discussion around CBD needs to evolve as more studies and research become available. Currently, companies should stick to what we actually know, which is how CBD is the most abundant of the 113-plus potentially beneficial cannabinoids found in the plant cannabis sativa L. By talking about these facts and directing the focus on consumer education for what to look for when purchasing CBD products, we can hopefully stop the spread of false information that will skew the public’s perception.” – Chris Van Dusen, CMO for Balanced Health Botanicals

Science and Regulation

On May 31, 2019, the FDA held its first public meeting as a forum for stakeholders to share their perspective on how CBD products could best be regulated. The goal of the meeting was to gather information and scientific data about the safety of hemp-derived products, product quality, manufacturing processes, product labeling and the marketing methods.

During this meeting, state regulators highlighted the need for FDA guidelines, consumer advocates expressed concern about the lack of scientific research, and industry leaders stressed the importance of adopting consistent terminology, uniform manufacturing practices and coherent quality standards.3 Although the FDA recognizes the growing support and public interest in CBD products, the organization is still in the process of gathering information, identifying risk factors, and investigating its regulatory options.

“The 2018 Farm Bill is proving to be the final nail in the coffin for the Federal Government’s long-standing moratorium on funding research designed to elucidate the full therapeutic potential of cannabinoids, or for that matter, any research that may have ultimately undermined the antiquated and hypocritical scheduling of cannabis as Schedule 1. What we are seeing right now is the ushering in of the golden-age of cannabinoid research. While we still have a long way to go to makeup for almost 80 years of lost time, one can’t help but feel optimistic as we move to an era where fact- and science-based data can drive rational decisions in areas such as medicine, policy, and personal liberty.” ~ John Harloe Ph.D., General Counsel for Balanced Health Botanicals

To support this mission, platforms like ValidCare, a Denver-based market intelligence and consumer research platform for the hemp industry, sprang into action by working with major CBD companies to gather data on consumer experiences with their products through its CBD+me™ app. Platforms like this are collecting as much information as possible in order to relay consumer data over to the FDA.¹³ Additionally, another Farm Bill requirement demands each state department of agriculture to submit a management plan to the USDA, outlining rules for hemp cultivation and processing in their respective jurisdictions.

In response, states like Colorado and the Colorado Department of Agriculture (CDA) partnered with leading state, local, and tribal agencies, as well as industry experts in cultivation, testing, research, processing, finance and economics to establish a statewide initiative known as the Colorado Hemp Advancement and Management Plan (CHAMP). These state funded programs will only add to the research need for the FDA to move forward with regulation.

Other government agencies are stepping in as well. The U.S. National Institute of Health (NIH) announced its approval of $3 million toward multiple studies on the effects of cannabis as a pain relief alternative. These grants, being funded by the NIH’s National Center for Complementary and Integrative Health (NCCIH), are designated to nine national studies on CBD. Now that funding has been freed up to be allocated to these studies and programs, it’s only a matter of time before the scientific evidence needed for regulation will become available.

Farm Bill

FEDERALLY LEGAL: The 2018 Farm Bill officially classifies hemp as an agricultural commodity and removes it from the federal list of Controlled Substances. This impacts everything from direct shipping to payment processing and opens the market up to consumers across the country, removing all federal risk related to interstate commerce.

Federal acceptance of the hemp plant will lead to an influx of investment into all facets of the industry, from farming, to processing, to packaging and shipping. Likewise, we expect to see a proliferation of research studies into the hemp plant and its derivatives.

States rights will still prevail. Federally legal means states cannot prohibit shipping across their borders; State lawmakers can, however, adopt their own policy and stance relative to CBD sales and distribution in their state.

The 2018 Farm Bill defines hemp as all parts of the Cannabis sativa L plant, including “extracts” and “cannabinoids” with a THC concentration of <0.3%.

Hemp farmers will now be able to carry federally subsidized crop insurance and can fully participate in USDA programs for certification and competitive grants.

This bill brings us one step closer to destigmatizing the plant and industry as a whole, bringing greater consumer awareness of the medicinal benefits of cannabidiol and other hemp-derived cannabinoids. By de-scheduling hemp and removing it from the Controlled Substance Act, it opens up the possibility of public and private sponsored research programs.

Executive Bios

Chase Terwilliger, CEO

Since leading Balanced Health Botanicals, the team has grown from four employees to 100+, increased product SKUs from one to over 800, and reported consolidated third-quarter revenue of $16.4 million, a 563% growth YoY. Chase’s goal is to continue the growth of the vertically integrated house of brands, becoming the largest supplier of hemp-derived CBD in the world.

Chris Van Dusen, CMO

Chris has spent the last 10 years in various executive level roles both in-house and at leading agencies, most recently at Parcon Media which he co-founded with the focus on Conversion Rate Optimization and high accountability media buying. Since joining BHB in early 2017 the company has seen torrid growth to the tune of $28 million in eCommerce sales in 2018 and $40 million overall.

John Harloe, Ph.D. General Counsel

A cum laude graduate of SMU Dedman School of Law, John also has a doctorate in Pharmacology & Toxicology from VCU Medical Center, where his research focused on cannabinoid and endocannabinoid research. Prior to joining BHB, John spent 8 years litigating and resolving mass tort claims against multi-national pharmaceutical and medical device companies.

Sources

NCSL. (2019 August 02) State Industrial Hemp Statutes. FDA
(2018) What dies the 2018 Farm Bill Mean for the Hemp and CBD Businesses?
Canna Law N Bougenies. (2019 June 05). Notes on the First Public FDA Meeting on CBD.
USA R Miller. (2019 October 23) Everyone is Asking Google About CBD. But Does It Actually Work?
Cision PR Newswire. (2019 February 26) Market Research Company Stands by $22 Billion by 2022 CBD Market
A LaVito. (2019 June 11) Krogers to Sell CBD Products in Nearly 1,000 Stores.
(2019 April 02) Warning Letters and Test Results for Cannabidiol-Related Products.
Chicago Tribune. N Bougenies. (2019 Sept 25) CBD Regulations Might Come Sooner Than Expected from
Hemp Industry Daily. (2019 October 29) USDA Grants Nearly $1 Million For Organic Hemp Production Research.
Canna Law Blog. N Bougenies (2019 August Hemp Regulation: USDA Struggles with Drafting THC Testing
M. Brenan (2019 August 07) 14% of Americans Say They Use CBD Products.
Geoff (2019 November 4) At-risk and unaware, consumers need CBD regulation.
Javier (2019 November 5) Exclusive: ValidCare Partners With University Of Kentucky To Study CBD’s Efficacy.
Janet (2019 November 11) Most Americans Wrongly Think CBD Is Regulated By FDA, Survey Finds.
Andrew (2019 October 24) Google searches show millions of people want to learn about CBD — here are 3 things you should know about it.
Javier (2019 November 1) CBD Is More Popular Than Jesus, Kanye West, The NBA, Taylor Swift, The Beatles And AOC Right Now, Data Shows.
Suzanne (2019 May 29) TSA Update: Flying With Some CBD Oil Is Now Okay.