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Is CBD Legal?

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Cannabidiol (CBD), the second-most abundant component in the cannabis plant, has been gaining praise for its therapeutic potential and non-psychoactive effects. Studies have proven that this chemical compound can help control unwanted symptoms in a wide range of health conditions,  such as pain, inflammation, acne, epilepsy, diabetes, anxiety, and addiction.

CBD is non-psychoactive, meaning that it does not produce the high that is associated with the consumption of cannabis. It does not have mind altering effects like its relative marijuana, a very important distinction. Unfortunately, however, CBD has somewhat of a confusing legal status because it is sometimes derived from cannabis. Thankfully, most states recognize this difference and allow the use and sale of CBD as long as the THC content within the product is below 0.3%.

Although the majority of states allow the use and sale of CBD products, specific restrictions can vary depending on jurisdiction.

Before getting into CBD specific restrictions by state, it’s important to understand the differences between hemp and marijuana, and the reasoning behind the different legalities that surround them.

Understanding the Psychoactive Effects of Cannabis Plants

Marijuana and hemp are both members of the cannabis family, and share many similar characteristics. The one crucial difference between the two plants, though, is the amount of the psychoactive component tetrahydrocannabinol (THC) that each plant produces. This can be the determinant factor for CBD’s legality depending on the state. THC content in marijuana can be up to 35%, whereas THC in hemp contains only 0.3%; this is the primary difference that distinguishes the two from being psychoactive.

THC is capable of altering the mind because it binds directly to CB1 receptors. These CB1 receptors have a direct influence on the brain, and can be influenced by THC. CBD, however, the second-most prominent cannabinoid in cannabis, does not create the “high” feeling that THC does because it doesn’t interact directly with the CB1 receptors. Additionally, CBD counteracts the psychoactive effects of THC. So, marijuana and hemp strains that contain a higher CBD:THC ratio are less psychoactive.

Because CBD from hemp has no psychoactive effects, the purchase, sale, or possession of hemp CBD products are federally legal in the majority of the 50 states. However, because hemp is sometimes confused with the marijuana plant, there is still some stigma toward hemp-derived CBD. From the Federal Government’s perspective, hemp-derived CBD is legal.

Marijuana-derived products, on the other hand, do not have the same freedom as hemp-derived CBD products. Because these CBD products have been derived from THC-rich marijuana, these products are   considered by some as a byproduct of marijuana. Whether or not marijuana-derived CBD is legal depends on the state. However, in most states it can be rather confusing due to specific laws.

The Confusion on CBD’s Legal Status

The confusion regarding the legality of CBD stems from the fact that it is often viewed as a component of the cannabis plant instead of a chemical compound of its own. Furthermore, many mistakenly believe CBD is derived exclusively from marijuana and are not aware that the majority of the CBD products available on the market are actually derived from legal, industrial hemp.

While progress is being made, the legality of CBD as a whole is still unclear due to different laws at state and federal levels. Generally, CBD is legal in all 50 states, but there are certain distinctions that must be accounted for to ensure the avoidance of any legal action from particular states.

The difference between legal and illegal CBD depends on several distinguishing factors determined by the individual states. However, whether or not the CBD is derived from hemp or marijuana still serves as one of the most popular crucial determinants.

States Where CBD is Legal for Both Medicinal and Recreational use, as of 2019

  • There are ten states where the cannabis plant in all capacities, including both marijuana and hemp, are 100 percent legal for recreational and medicinal use:
    • Alaska
    • California
    • Colorado
    • Maine
    • Massachusetts
    • Michigan
    • Nevada
    • Oregon
    • Washington
    • Vermont
  • In these states, individuals may legally use CBD in any form without a prescription

States where CBD is legal for medicinal use, as of 2019

  • There are currently a total of 46 states where CBD is legal with a prescription for medicinal use
  • Although CBD use is legal in these 46 states, the law varies from state to state. 17 states have specific legislation for the THC levels found in CBD. These 17 states are:
    • Alabama
    • Florida
    • Georgia
    • Indiana
    • Iowa
    • Kentucky
    • Mississippi
    • Missouri
    • North Carolina
    • Oklahoma
    • South Carolina
    • Tennessee
    • Texas
    • Utah
    • Virginia
    • Wisconsin
    • Wyoming
  • The remaining 29 states that fully legalize the medical use of all CBD products derived from either hemp or marijuana are:
    • Alaska
    • Arizona
    • Arkansas
    • California
    • Colorado
    • Connecticut
    • Delaware
    • Florida
    • Hawaii
    • Illinois
    • Maine
    • Maryland
    • New Hampshire
    • New Jersey
    • New Mexico
    • New York
    • North Dakota
    • Ohio
    • Oregon
    • Pennsylvania
    • Rhode Island
    • Vermont
    • Washington
    • West Virginia
    • The territories of Guam and Puerto Rico allow the use of CBD products on medical grounds

CBD is Illegal in These States

  • The four remaining states where marijuana-derived CBD is completely illegal are:
    • Idaho
    • Kansas
    • Nebraska
    • South Dakota
  • Even though marijuana-derived CBD is illegal in these states, the laws regarding hemp-derived CBD still remain unclear. Various businesses are still selling hemp-derived CBD in these states.

In addition to looking at the differences between hemp and marijuana, it’s also important to take a look at the history of cannabis as a means of medicine to better understand why CBD’s legal status is not yet clear.

Chronology of CBD-Related Laws

Hemp differs from marijuana by having higher levels of CBD and lower levels of THC. The federal government has been aware of this fact for over 60 years, when it stated in the Controlled Substances Act (CSA) that hemp fiber, stalk, oil, and sterilized weeds should not be controlled like marijuana. This exclusion was expressed with the intention of regulating marijuana, not to interfere with the legal, industrial hemp industry.

In 2004, hemp products made a big stride toward legal recognition when the U.S. Court of Appeals nullified regulations of the Drug Enforcement Administration (DEA), that threatened to ban the production and sale of edible hemp products. According to the court, the hemp products in question were non-psychoactive and fitted the description of the above-mentioned exclusion in the CSA. This ruling led to a general perception that companies in the U.S. are legally allowed to import, trade, and use hemp fiber, stalk, oil, and seeds. However, it was still illegal at the time for farmers to grow hemp plants. This would change a decade later.

In 2014, President Barack Obama passed the 2014 Farm Bill, which provided a clearer definition of the legality of industrial hemp. It states that:

  • An institution of higher learning is allowed to grow industrial hemp for research purposes under an agricultural pilot project or other agricultural or academic program, as long as it complies with state laws regarding hemp cultivation.
  • The site used for growing industrial hemp must be registered with or certified by the state’s Department of Agriculture.
  • The state’s Department of Agriculture must be authorized to impose regulations on the activities of the agricultural or academic program.
  • The term “industrial hemp” refers to hemp plants that contain 0.3 percent or less THC on a dry weight basis.

While this new law reduced restrictions on hemp cultivation, it did not apply to the cultivation and use of industrial hemp for non-research purposes. In order to clear the confusion, the government added a new provision called the Omnibus Law in 2016. The Omnibus Law stated that funds authorized by federal law cannot be used to interfere with a state-registered agricultural pilot project during the fiscal year. Federal agencies were not allowed to prohibit the processing, transportation, sale, and use of industrial hemp grown under such a program. Following the expiration of the 2016 Omnibus Law, the Congress passed several resolutions to extend the law.

Industrial hemp received another legal boost in August 2016 when the Department of Agriculture, Food and Drug Administration, and the DEA jointly released the Statement of Principles on Industrial Hemp. According to the statement, state departments of agriculture and institutions of higher learning may outsource hemp pilot projects to private farmers and businesses. Additionally, hemp products may be sold interstate if they are part of a marketing research program.

Nonetheless, the legal status of hemp took a step back in December 2016 following the establishment of a new code  for marijuana extracts by the DEA. Media reports suggested that the code changes federal law and threatens retail products made from hemp, in particular, CBD. Then again, many industrial hemp experts, legal experts, members of the Congress, and even DEA spokesmen brushed the code off as just an administrative or procedural action. Later on, the DEA itself confirmed that the code does not fundamentally change CBD’s legal landscape.

An updated version of the Farm Bill was later passed by Congress in 2018. The 2018 Farm Bill added additional benefits for the hemp crop, such as legalizing the regulated production of hemp. Unfortunately, however, the 2018 Farm Bill did not distinguish hemp from other cannabis plants.

Where does CBD stand then, legally speaking?

Determining the Legality of CBD

The legal status of industrial hemp and CBD has been on a roller-coaster ride, but it has finally gained federal legality thanks to the growing understanding of its potential health benefits.

In summary, there are two factors determining the legality of CBD: source and THC content. As mentioned earlier, the cultivation and processing of industrial hemp plants and the production of derivative products that contain less than 0.3 percent THC are considered legal.

While there are no federal laws that specifically address the legality of CBD, the cannabinoid is legal to be produced, sold and used, so long as it meets the aforementioned criteria. This is evidenced by the easy availability of CBD products found online and in retail shops.

Takeaways

  • Hemp-derived CBD is legal at the federal level
  • Marijuana-derived CBD is not legal at the federal level
  • Each U.S. state has its own set of regulations on the consumption of CBD products
  • The two factors determining the legality of CBD are source and THC content

If you are planning to incorporate CBD into your daily diet, it is essential that you choose products that are made by trusted manufacturers that adhere to federal legal requirements.

Daintri is a leading online retailer of high-quality CBD products, including CBD oil, tincture, edibles, topicals, vapes, beauty products, and more. Its products are made by reputable manufacturers that adhere to federal regulations and use the finest ingredients and most advanced manufacturing processes.

*To view Daintri’s sources for this and all Education Center articles, click here.

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