Is CBD legal in all 50 states????
We hear this all the time. See this phrase in advertisements for CBD products online and in print, but is it true? Believe it or not, this question is not an easy one to answer. The recent passing of the 2018 Agriculture Improvement Act (aka the 2018 Farm Bill) has drastically changed the landscape surrounding the legality of CBD and has made the question easier to answer, however, there is still much confusion. The root of the issue now lies with the source of the CBD. Let’s start at the beginning with some basic facts.
-Cannabis (Cannabis sativa L.) is the plant at the center of all this confusion, it encompasses all these definitions; hemp, ‘marijuana’*(ideally referred to as high resin cannabis), industrial hemp, “non-psychoactive hemp”, therapeutic hemp, and any number of slang terms including weed, pot, etc.…it’s ALL cannabis, the same genus of plant.
-CBD can be found, in varying amounts, in all the above types of the cannabis plant.
-The legal issues surrounding the cannabis plant in this country have resulted in an ongoing ‘tug of war’ between the federal government’s DEA and cannabis proponents for more than 80 years…the details of which are far beyond the scope of this article.
-The definition of ‘marihuana’ in the Controlled Substances Act (CSA) of 1970 did not differentiate between the types of the cannabis plant. Interestingly, only certain parts and the derivatives of those parts of the plant, (Cannabis sativa L.), AND the THC compound were named as controlled substances. CBD was never specifically named in the CSA, just resins extracted from the cannabis plant.
It wasn’t until the 2014 Farm Bill was passed that 2 important changes were made: 1. “Industrial hemp” was defined as Cannabis sativa L. with 0.3% or less of delta- 9 THC content on a dry weight basis and 2. It allowed for the first legal cultivation of industrial hemp in the US in modern times, under certain qualifying conditions. This is when the legal distinction between “marijuana” (high resin cannabis) and “industrial hemp” really began.
Since that time, CBD obtained from industrial hemp has been widely manufactured and distributed with the claim that it was “legal in all 50 states”. However prior to the recent 2018 Farm Bill, this was only true under certain conditions.
Then, in December of 2018, congress passed the 2018 Farm Bill. This significant piece of legislation changes the game. Basically, it redefines hemp and removes it from the CSA and, more importantly, from the purview of the DEA.
Significant points of the 2018 Farm Bill are highlighted below.
-Hemp (no longer called ‘industrial hemp’) is now legally defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
-Hemp has been removed from the CSA, therefore it will no longer be illegal under federal law.
-The new law prohibits the interference of interstate commerce of hemp and hemp-derived products.
-States will continue their right to legislate and regulate at the local level, subject to approval by USDA.
-The USDA (not the DEA) is charged with regulating the cultivation of hemp and its related products.
-The FDA (not the DEA) will continue to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act (FD&C Act). Specifically of interest are products claiming to have “therapeutic benefits” and those labeled as “dietary supplements.”
So, what does all this now mean for the consumer? If the rules keep changing, how is one to know the law and their rights? Remember these important points:
-After the passing of the 2018 farm bill, the US government differentiates the legal vs illegal cannabis plant by THC content. At the FEDERAL level, to be considered legal, the cannabis plant must have THC levels at or below 0.3% on a dry matter basis. If so, it is referred to as ‘hemp’. Conversely, if the THC levels are above 0.3% in the cannabis plant (it is considered “marijuana”) and it is illegal.
– CBD derived from “marijuana” is illegal at the federal level, because the source remains illegal under the CSA. It is also illegal at the state level, unless the state has passed pro-cannabis or pro CBD legislation.
-CBD derived from hemp is now legal at the federal level and at the state level. Across the country, states can regulate it within their borders if they propose a regulatory plan that is approved by the federal government. However, it appears they cannot outlaw it completely. Expect there to be more legal battles clarifying these issues in the future.
In the end, to determine if your CBD product is lawful, consider the source of the CBD (hemp vs high resin cannabis, typically referred to as ‘marijuana’). If it is sourced from hemp, it is now legal, provided the product follows FDA guidelines and any state or local regulations. ** If it is sourced from high resin cannabis, then consider the state in which you live and whether there are state laws allowing for this type of CBD use. Know how the various laws affect you.
To find out the laws in your state, you can check state government websites or https://norml.org/states
As state and local jurisdictions weigh in on the new rules and enact their own local regulations, the hemp-derived CBD industry will continue to grow. New questions will arise, and the FDA has promised to help members of the public understand how the agency intends to move forward. There are likely to be new legal challenges as the FDA weighs in on products with claims of “therapeutic benefit” or those labeled as “dietary supplements”.
They have created a webpage to address questions regarding the new 2018 Agriculture Improvement Act and regulation of these products generally.
You can access this page by clicking the link below:
The FDA and Marijuana; Questions and Answers.
For more info on the 2018 Farm Bill, see the article on our ‘In the News’ page:
Author’s note 1: * The term ‘marijuana’ is largely regarded by those in the cannabis industry as a controversial word that was created to mislead the general public in the early 1900’s. Its derogatory connotation was used to fuel the racially-charged, negative stigma surrounding cannabis use. When used by this author, it is done reluctantly and to either 1) highlight the general negative perception shown by some towards cannabis or 2) a direct reflection of use by another source.
Author’s note 2: ** While every attempt is made to provide accurate information, do not consider this article as legal advice. Please consult an attorney for further legal clarification, if needed.
Coming next: What is CBD? Part 3: Hemp vs. Cannabis derived CBD