Are CBD Products Legal?

by Jul 31, 2020FAQ

Do you have questions regarding the legality of CBD products? Although products made from industrial hemp containing less than 0.3% THC were made federally legal, there are still questions regarding the legality of CBD in certrain areas or under certain conditions. See below for more information:

The Answer:

As 2020 begins, there has been a lot of progress made for the cannabis legalization movement. Although laws and regulations have loosened within the past few years, many people are unfamiliar with the laws regarding cannabis in their respective states. Due to some legal grey areas, some still have questions regarding the legality of CBD products.

Thanks to H.R.5485 the Hemp Farming Act of 2018 [1] Cannabidiol (CBD) is legal in 46 out of the 50 states under specific conditions, with Nebraska, South Dakota, Iowa, and Idaho being the only exceptions.

The legality of CBD can vary from state to state and federally, but in general, the main determining factor is whether the CBD is derived from hemp or from marijuana.

Fortunately, the legal status of CBD has become more defined with recent reforms. Law enforcement in some areas may still enforce local laws that conflict with federal regulations, and when combined with a large amount of misinformation out there, many people may still have a skewed view on the legality of CBD going into 2020. 

The Hemp Farming Act of 2018 was a bill that became law on December 20, 2018. It removed hemp (defined as cannabis with less than 0.3% THC) from the Schedule I controlled substances list and made it an ordinary agricultural commodity.

HEMP VS. MARIJUANA

Both the terms hemp and marijuana are actually just used to describe different varieties of cannabis, [2] and both can produce large amounts of CBD. While the two are very similar, they are classified differently under the law. The main reason for this being that marijuana mainly produces the cannabinoid THC which is capable of getting someone high. Hemp strains primarily produce CBD, a cannabinoid which in no way is “psychoactive” or mind altering. Understanding this difference is crucial to understanding the legality of CBD.

As they are both members of the same plant family, hemp and marijuana share many visual similarities. In fact, unless someone is a cannabis expert, they might have a hard time telling the two apart in a side by side visual comparison. At a chemical level, the two plants have drastically different levels of THC. [3]

Most hemp strains produce a negligible amount of THC. That amount is usually less than 0.3%, and is not nearly enough for a user to experience any psychological effects. Marijuana, on the other hand, produces large amounts of THC, and because of this can induce mind-altering effects when consumed. That’s the primary reason why marijuana remains federally illegal in the United States, while hemp does not.

There are still some regulations that are required for hemp to be completely legal under federal law, however. Not everyone is simply permitted to grow and sell hemp in their backyard, for instance. First, the hemp must adhere to the shared state-federal regulations including the 0.3% THC regulation. Secondly, the hemp must be grown by a properly licensed grower.

Finally, the 2018 Farm Bill removed restrictions on the sale, transportation, and possession of hemp-derived CBD products and allowed for the transportation of hemp-derived CBD products across state lines as long as the products follow the federal regulations listed above.

(Click Photo To Enlarge)

States Where Marijuana Derived CBD is Legal for Recreational Use

As of 2019, there are ten states where cannabis, including both marijuana and hemp, are completely legal for recreational and medicinal use. [6] These states are Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington. Adults in these areas face virtually no restrictions when it comes to the use of CBD and CBD products.

States Where Marijuana Derived CBD is Illegal

There are certain states and counties where marijuana-derived CBD is strictly prohibited, and even hemp-derived CBD falls into a legal gray area. There are currently three states that have taken a strong stance against CBD in the US. These states are Idaho, Nebraska, and South Dakota.

Idaho

Idaho state law says [7] that any hemp-derived CBD product must meet certain conditions to be considered as legal. Unlike other states with the 0.3% THC restriction, in Idaho CBD products must contain 0% THC. They also must be classified as “not marijuana” under Idaho Code § 37-2701(t). Which basically states that CBD can only be taken from certain parts of the hemp plant.

 Nebraska

 Hemp-derived CBD was decriminalized by the state government of Nebraska in a bill passed on May 30, 2019. Document LB 657 [8] removed hemp products from the controlled substances list. Any CBD product sold in Nebraska must contain less than 0.3% THC as well as meet certain testing, delivery, and manufacturing requirements. It is still largely considered to be technically illegal, so proceed with caution.

 South Dakota

 Industrial hemp and CBD oil in all forms are illegal in the state of South Dakota. [9]

 If you live in one of these states, it is highly advised to proceed with extreme caution. While some businesses do sell CBD products in these states, the sale, possession, or use of CBD is very risky.

CBD LEGAL STATES

Now that we’ve discussed the legality of the two primary sources of CBD, we should take a moment to explore the laws of CBD derived from hemp versus CBD derived from marijuana, and how related laws vary from state to state.

 While hemp-derived CBD is federally legal, per the Farm Bill, marijuana-derived CBD is a bit more complicated because it is derived from a plant that is still largely illegal in many areas.

 States such as California [4] and Colorado have looser marijuana laws [5] and have legislated that marijuana is, in fact, legal for recreational use. As a result of this law, so is marijuana-derived CBD in these areas.

 Other states only allow marijuana-derived CBD usage under certain conditions, such as when a person has a prescription for a specific medical condition, while some states still strictly prohibit it outright.

States Where Marijuana Derived CBD is Legal for Recreational Use

As of 2019, there are ten states where cannabis, including both marijuana and hemp, are completely legal for recreational and medicinal use. [6] These states are Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington. Adults in these areas face virtually no restrictions when it comes to the use of CBD and CBD products.

States Where Marijuana Derived CBD is Legal for Medicinal Use

As of 2019, forty-seven states have approved marijuana-derived CBD for medicinal use. Regulations vary from state to state with the majority of states allowing use for a broad range of medical conditions, while other states set specific requirements for approved use.

States that permit the use of marijuana-derived CBD for a broad range of medical conditions include Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and West Virginia.

States with regulations that permit the use of marijuana-derived CBD under certain medical circumstances include Alabama, Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.

It is extremely important to note that the regulations for these states generally require patients to obtain a medical marijuana card in order to legally consume marijuana-derived CBD. The requirements to obtain a medical marijuana card in each state will vary.

Before purchasing CBD in any of these states, we highly recommend that you do additional research on laws in your state.

Finally, regardless of which state you currently reside in, we strongly recommend talking with your doctor or certified healthcare professional before taking CBD to ensure it is safe for you, as CBD has shown potential to interact with certain medications that metabolize in the liver. 

Citations

  1. https://www.congress.gov/bill/115th-congress/house-bill/5485
  2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5531363/
  3. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6155167/
  4. https://web.archive.org/web/20100101143455/http://www.cdph.ca.gov/programs/MMP/Pages/Medical%20Marijuana%20Program.aspx
  5. https://web.archive.org/web/20080821210705/http://www.cdphe.state.co.us/hs/medicalmarijuana/fullpacket.pdf
  6. https://en.wikipedia.org/wiki/Timeline_of_cannabis_laws_in_the_United_States#cite_note-norml-co-25
  7. https://odp.idaho.gov/cannibidiol/
  8. https://nebraskalegislature.gov/bills/view_bill.php?DocumentID=37622
  9. https://atg.sd.gov/OurOffice/Media/pressreleasesdetail.aspx?id=2167

THE HISTORY OF CBD – IS CBD A SCHEDULE 1 DRUG

That should cover any general questions about CBD legality, but there is another commonly asked question; ‘is CBD a schedule 1 drug?’ The answer is no, but would you believe there was a time when it was yes?!

That’s because CBD used as a questionable health and wellness additive is a lot older than you would think  – it goes back to 2016.

CBD LEGALITY 2016-2017 (THE DARK AGES)

The government announced on December 14, 2016 (INDIRECTLY we might add), that effective January 13, 2017, CBD would be a schedule one drug. Here is the exact definition of what this new drug code will mean:

“Meaning an extract containing one or more cannabinoids that have been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant.” Extracts of marihuana will continue to be potentially relieveed as Schedule I controlled substances.” [1]

Do you see now why we say indirectly?

While they never mentioned “CBD” in this announcement specifically, they did let the world know that they are creating a New Drug Code for MARIHUANA Extracts that will make them illegal starting on January 13, 2017.

What The Announcement Meant

To make this super easy, I’m going to quote directly from Section 812 of the DEA website for the definition of what classifies a schedule 1 drug.

(1) Schedule I.—

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in potentially relievement in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Source: https://www.deadiversion.usdoj.gov/21cfr/21usc/812.htm

Did your eyes widen with shock and jaw drop in disbelief?

Mine too.

Reasons Why Listing CBD a Schedule 1 Drug Is Ridiculous

To briefly reiterate, if a drug is put on the schedule 1 drug list, it is considered both an addiction threat and it also is considered to have no accepted medical use.  I’m attacking these two general reasons with factual, medical evidence and will prove why CBD oil should not be listed and furthermore, shouldn’t be anywhere near it!

Reason #1: CBD is an addiction threat. 100% FALSE!

Reason #1: CBD is an addiction threat. 100% FALSE! 

CBD does NOT contain THC. THC is the part of the cannabis plant that causes the psychotropic effects (the high) and is the cannabinoid responsible for the alleged addiction. Furthermore, researchers are proposing and concluding that CBD could be a potentially relievement for addiction.

Example 1
: Three direct quotes from a case study on CBD and opioid addiction:

To date, the evidence appears to at least support a potential beneficial potentially relievement for opioid abuse.

The fact that patients with substance use disorders often present with various psychiatric and medical symptoms that are reduced by CBD—symptoms such as anxiety, mood symptoms, insomnia, and pain—also suggests that CBD might be beneficial for potentially relieveing opioid-dependent individuals.”

CBD could thus offer a novel line of research medication that indirectly regulate neural systems modulating opioid-related behavior, thus helping to reduce side effects normally associated with current opioid substitution potentially relievement strategies.[2]

Example 2: This really made me chuckle at the fact how someone (DEA) can openly claim that CBD can be a hazardous addiction.  Here is a case study on…

wait for it…

CBD as an effective potentially relievement for Cannabis Withdrawal Syndrome. Yes, you read that correctly and here is the conclusion:

CBD can be effective for the potentially relievement of cannabis withdrawal syndrome.”[3]

How can CBD be an addictive threat if it an effective potentially relievement for the addiction caused by the same plant that it comes from?

It’s literally unbelievable!

Reason #2: CBD has no accepted medical value

Reason #2: CBD has no accepted medical value

We, Cannabidiol Life, are legally not allowed to make medical claims. Therefore, we will let our customers do all the claiming for us!

Here are real CBD video reviews from our customers.

As you can see, whether CBD has been “medically accepted” or not, we have witnessed first hand, with our own two eyes, real people giving their real testimonies on how CBD has changed their life for the better.

The Direct Reason Why It’s Not:

CBD oil is not a schedule 1 drug is because frankly, the DEA does NOT have the authority to make statute laws all on their own.

There is a method to the madness of passing laws and the process is as followed:

  1. DEA is let aware of a problematic substance that can be abused, has no medical use/advantage, and is harmful
  2. DEA considers evidence based on scientific and medical data to make an educated decision.
    In this case, with CBD, they never had bad data, so it was a dumb move and almost unlawful move on their part…
  3. DEA will propose that a certain drug should be put on the schedule 1 drug list
  4. The attorney general will then go through the same process to which then, Congressional action will now take place to make the final decision as only within congressional approval (in most cases) can a drug be placed on the schedule 1 drug list.
    Source: https://www.deadiversion.usdoj.gov/21cfr/21usc/811.htm

Contradictory Laws For Cannabis & CBD

Here are some ups and downs on various laws passed over the past several years:

  • The first submission of the proposal to make CBD illegal was made in 2011
  • In 2012, Colorado and Washington legalized marijuana for recreational use
  • That sparked a movement which ripped across the US. This lead to Washington D.C and 28 states to launch cannabis programs
  • In 2014, the US government adds another amendment to the Agricultural Adjustment Act or Farm Bill. This bill legalizes the cultivation of hemp for pilot programs, provided that the plant doesn’t have more than 0.3% THC. This Farm Bill allows for the cultivation, production, and marketing of hemp products as long as requirements are met
  • December 2016, the DEA announces that all cannabis extracts are 100% illegal

This muddled conglomerate of different laws stating different things is what has caused the legalization of CBD to be so confusing!   Since the law is so unclear, hundreds of people, small companies, and even huge multi-million dollar corporations are still selling industrial hemp-extracted CBD to this very day (including us) and we’re doing so nationwide.

CBD Was Announced To Be A Schedule 1 Drug But Not Enforced

As stated in the last paragraph, many companies sell CBD products nationwide. We’re definitely not hiding from anyone and all of us send through either UPS or USPS. There are a handful of companies that have been selling CBD for years and the only cease and desist letters any company has ever received are simple warning letters demanding that the companies remove blatant medical claims. You can view the warning letters here:

2015 Warning Letters & Test Results
2016 Warning Letters & Test Results

THE DEA NEVER SHUT DOWN CBD RETAILERS/COMPANIES

 

Short Q&A Based on FAQ’s

  • Are people allowed to buy CBD online? 
    Answer:  You are only allowed to purchase CBD if it is within the requirements of the Farm Bill.
  • Is CBD illegal to sell?
    Answer: CBD is only illegal to sell if it contains over 0.3% THC and if it is extracted from Marijuana/Cannabis plants…
  • What is the probability that you will be arrested for taking CBD in a state that doesn’t allow medical marijuana?
    Answer: Now, this is MY opinion, it is NOT a substitute for legal advice… but the probability is very slim. You’re absolutely not allowed to take legal advice from me as my opinions are not a substitute for your state and/or federal laws.
  • What are some specific resources I could read to learn more on my own?
    Answer: Here are two credible resources you might want to consider reading:

Clarification of the New Drug Code (7350) for Marijuana Extract
Final Rule: Establishment of a New Drug Code for Marihuana Extract

Christopher Visser

Christopher Visser

FOUNDER/CEO

Final Advice

Take CBD responsibly, consult with your family physician prior to taking it for the first time, and follow the laws of your state. If you don’t know the laws, reach out to your state government office and ask them for yourself!  It is totally okay to do your own research and using your appointed government officials is a great way to begin your journey towards enlightenment!

Take care, everyone!  Please leave comments below so we can start chatting and learning together!

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