Washington still hasn’t decided what CBD is, as markets linger in legal uncertainty

Washington’s latest moves on hemp-derived CBD show just how unresolved U.S. cannabinoid policy remains.

In recent weeks, the federal government has advanced actions that point in opposite directions, each resting on a different assumption about what CBD is supposed to be.

On one track, Congress has floated a bipartisan bill called the Hemp Enforcement, Modernization, and Protection Act (HEMP Act), which would loosen restrictions on hemp-derived cannabinoid products, including ultra-low THC limits that are embedded in recent federal spending language. Lawmakers describe the effort as closing the “hemp loophole,” aimed primarily at intoxicating products, but written in a way to protect the wider CBD market.

On another track, the administration has floated the idea that certain non-intoxicating, hemp-derived CBD products could be reimbursed through Medicare. That signal places CBD closer to the medical system than to the consumer retail market where it currently operates.

Misalignment

Medicare coverage assumes that a product meets basic medical standards. That includes consistent formulation, defined dosing, enforceable manufacturing controls and clear safety thresholds. Those elements are not optional; they are the foundation of any reimbursable therapeutic market.

None of that groundwork exists today for hemp-derived CBD at the federal level. Not because it cannot be created, but because regulators have avoided deciding what CBD legally is.

For years, the Food and Drug Administration has said CBD cannot be sold as a dietary supplement or added to food because it was first investigated as a drug. At the same time, the agency has declined to create a practical alternative pathway. The result is a national CBD market operating at scale without uniform federal standards, shaped by uncertainty rather than clear rules.

Risks to producers

Against that backdrop, Congress’s decision to impose an absolute THC cap, to take effect in November 2026, could require producers to discard product, engage in costly remediation or dilute CBD to levels that undermine effectiveness. Those steps raise costs and squeeze smaller producers, narrowing the lawful market.

CBD today is widely available over the counter in a competitive, cash-based consumer market. Medicare involvement would change that structure. When third-party reimbursement enters markets previously governed by direct consumer payment, pricing behavior often shifts. List prices rise, compliance costs increase and access becomes shaped by rules and gatekeeping rather than simple availability.

It is also unclear what problem Medicare coverage is meant to solve. Seniors already have access to CBD products, which are widely available without prescriptions. Medicare involvement rarely simplifies access and often introduces new layers of regulation.

Still searching

The deeper issue is not whether CBD has therapeutic potential. It is whether federal policy can move beyond contradiction and decide how hemp-derived cannabinoids are to be governed.

Treating CBD as medicine for reimbursement purposes while tightening restrictions that undermine lawful production is not a coherent strategy. It is another sign that Washington still has not answered the most basic question at the center of the CBD debate.