No, CBD Is Not ‘Legal In All 50 States’
CBD oil supplements on display at Alfalfa’s in Boulder, Colorado. (Photo by RJ Sangosti/The Denver . [+] Post via Getty Images)
An Indiana man was overwhelmed with emotion this week when a county court dismissed his case.
Mamadou Ndiaye was facing jail time and a $1,000 fine for marijuana possession. But Ndiaye possessed only CBD oil – a substance that was legalized by the state legislature last month. Thanks to the new CBD law, the prosecutor and judge both decided to dismiss the case.
“This is the best day of my life,” he told WTHR, which has been reporting on Ndiaye’s case and the confusion surrounding CBD laws in Indiana.
CBD, short for cannabidiol, is a compound found in cannabis that has gained prominence in recent years for its therapeutic properties. Cannabis advocates have hailed the cannabinoid for its promise in combating seizures, anxiety and myriad other ailments. CBD is “the new ‘it’ drug,” according to The Washington Post. It’s a “rapidly rising star for its capacity to deliver mental and physical benefits,” according to Quartz.
But contrary to what these articles suggest, CBD products are not “legal in all 50 US states.” If that were the case, why would Ndiaye be charged with a crime? Why would the Indiana police raid retailers selling the stuff? And why would the Indiana legislature take it upon itself to legalize CBD?
Many in the cannabis industry claim that as long as the CBD product contains less than 0.3% THC, it is classified as hemp under federal law and is therefore legal to possess and distribute. (WTHR commissioned a lab test for Ndiaye’s CBD oil — it had 0.00% THC.)
The 2014 Farm Bill is often cited as evidence that CBD derived from industrial hemp is now legal. But the legislation legalized only a very narrow set of hemp cultivation activities: It is legal to grow hemp under a state pilot program or for academic research. It is also legal to cultivate under state law “in which such institution of higher education or state department of agriculture is located and such research occurs.”
There are certainly CBD producers who source their hemp from cultivators that operate under the Farm Bill. But given how widespread these products are, it’s unlikely that all of them were sourced from research hemp. And state laws on CBD and hemp vary widely. Colorado, which legalized adult-use marijuana in 2012, has a robust industrial hemp program and is home to the first U.S.-bred certified hemp seed. But in Massachusetts, where you can now grow marijuana at home, it’s still a crime to grow hemp without a state license, reported The Boston Globe.
Republican Senator Mitch McConnell announced last month that he would introduce a bill to legalize hemp on the federal level.
Meanwhile, the Drug Enforcement Administration maintains that CBD is definitely still illegal. Last November, a spokesperson for the agency explained to WTHR that those who violate federal drug laws still run the “risk of arrest and prosecution.” But he also said that the DEA is not going after individuals who have benefited from CBD oil.
“It would not be an appropriate use of federal resources to go after a mother because her child has epileptic seizures and has found something that can help and has helped. Are they breaking the law? Yes, they are. Are we going to break her door down? Absolutely not. And I don’t think she’ll be charged by any U.S. Attorney,” DEA spokesperson Rusty Payne told the Indiana news station.
Then, there’s HIA v. DEA – a lawsuit by a hemp trade association that challenges the agency’s classification of CBD as a Schedule I substance. Federal judges at the Ninth Circuit Court of Appeals heard oral arguments in the case earlier this year. Clearly, attorneys representing hemp businesses have a different interpretation of federal law than the DEA.
So at the end of the day, CBD is not legal in all 50 states — even though it is widely available. At best, the law is murky and open to differing interpretations.
Cannabidiol is a trend taking the health-and-wellness world by storm. But contrary to many media reports, those who sell it still run the risk of prosecution.
Is CBD Legal in All 50 States?
Posted on July 13th, 2020
It’s hard not to hear about CBD right now. Whether it’s on TV, an ad popping up in your Instagram feed, or your friends talking about it, cannabidiol CBD is everywhere. And for good reason: many of those ads you see or conversations you hear will tout CBD as an all-natural solution for insomnia, stress, aches, and so much more. And this plant-based product comes in so many forms, making it easy to consume and simple to purchase. But with so much information and wide-spread availability, you may wonder whether all CBD products are legal. And if so, are they legal in your state? And what about the rest of the United States, is CBD legal in all 50 states?
Now, we’re not surprised about your confusion. CBD is a cannabinoid extracted from cannabis plants. And marijuana, which is a federally-controlled substance, is also a member of the cannabis family. So, it’s easy to get confused about CBD’s legality. But here’s the thing: CBD is just one of hundreds of cannabinoids concentrated in cannabis plants. Tetrahydrocannabinol (THC) is another. In fact, THC is the cannabinoid responsible for that euphoric high you experience with marijuana products.
Unfortunately, many people assume that CBD and THC have similar effects since they both belong to the cannabis family. This is not, however, the case. And you can begin to understand the differences by learning more about the variety of plant strains within the cannabis family.
What’s the Difference Between Hemp and Marijuana Plants?
The Cannabis Sativa plant encompasses many different varieties, but the two you’re most likely to hear about are marijuana and hemp plants. While very different in structure, hemp plants are bred for low THC and high CBD concentrations. In contrast, marijuana plants are cultivated for their opposite balance.
In spite of their differences, hemp and marijuana plants spent years being lumped together. In fact, before the Agriculture Improvement Act of 2018 , hemp had been illegal in the United States since the 1930s. So how did its legal status get so complicated? Here’s an overview of the history of cannabis in the United States.
Pre-20th Century: For centuries, hemp was among the oldest cultivated American crops, grown by the indigenous peoples and later European colonists. Hemp’s durable fibers were used for rope, cloth, paper, and more.
Early 20th Century: In the early 1900s, increased Mexican immigration to America introduced marijuana to locals, as they used it for calming and medicinal benefits. But the THC in marijuana produced psychoactive effects and, due to public health concerns, politics, and prejudice, all cannabis products, including hemp, became suspect.
1937: The Marihuana Tax Act of 1937 was passed, banning the cultivation of marijuana and hemp in the United States, despite their varying effects and uses.
1970: The Marihuana Tax Act was replaced with the Controlled Substances Act of 1970, which classified cannabis as a Schedule I controlled substance. It was defined to have no acceptable medical purpose, with a high potential for abuse.
1990s-2010s: Cannabis supporters push to reclassify hemp and marijuana, based on their medicinal purposes. In 1996, California becomes the first state to legalize marijuana for medical purposes.
2014: The 2014 Farm Bill builds a framework for Hemp Programs, permitting farmers to grow industrial hemp without a Drug Enforcement Administration (DEA) issued permit. This paves the way for large-scale production of CBD products.
2018: The Agriculture Improvement Act of 2018 creates more room for hemp cultivation, beyond pilot programs. It also lifts restrictions on the transportation, sale, and possession of hemp products across all 50 states, as long as they meet federal guidelines.
Given CBD’s 2018 status change, most people falsely assume that CBD or any cannabidiol supplements can be legally marketed anywhere in the United States. Well, that is wrong: CBD marketing and use is still tightly regulated. Here’s a comprehensive guide to assist you in understanding precisely where CBD is legal, and under which specific circumstances.
Why There’s Confusion Surrounding CBD
As we noted earlier, CBD is a naturally occurring chemical amalgam extracted from cannabis plants. The cannabis plant produces over a hundred different cannabinoids, and CBD just happens to be one of them. Unlike its cousin THC, CBD isn’t psychoactive, meaning that CBD won’t induce a psychoactive high. Reportedly, CBD use results in relaxation, coupled with other benefits.
CBD is found in both marijuana and hemp varieties of cannabis plants. But there are also three different cannabis varieties:
- Cannabis Sativa
- Cannabis Ruderalis
- Cannabis Indica
So, which one is marijuana, and which one is hemp? The answer to that isn’t that simple. Again, as we noted before, marijuana and hemp aren’t two plant varieties belonging to the same family. Instead, a Cannabis Sativa plant can either be marijuana or hemp. The difference comes in the THC percentage in the cannabis plant:
- Cannabis with a THC content of 0.3% or less can be classified as hemp
- Cannabis with THC exceeding 0.3% is deemed to be marijuana
Hemp Farming Act of 2018
The Farm Bill package encapsulates an extensive range of programs ranging from consumer protection to farmer subsidies. On a federal level, the 2018 Farm Bill legalized cultivating hemp plants containing 0.3% THC content.
- Withdraws hemp from the Controlled Substances Act
- Extends allowances for the commercial cultivation of hemp
- Legalizes the production of hemp in U.S. territories and Indian tribal land
The U.S. Department of Agriculture (USDA) now regulates hemp in lieu of the DEA. Since hemp is federally legal now, you might assume that CBD, which comes from hemp, follows suit. But you should note that not all hemp extracts are offered this legal status.
All in all, hemp and CBD oil are considered federally legal in all 50 states. Anyone in the United States can legally buy CBD oil on health store shelves, some pet stores, and the internet. In light of this new legality, consumer sales for CBD products reached over $350 million in 2018. Best of all, you don’t need a prescription or medical card to buy CBD.
CBD Isn’t Legal in All Its Forms
The Farm Bill allows the FDA to regulate products containing cannabis and cannabis-derived compounds, including CBD, under the Public Health Service Act, and the Federal Food, Drug, and Cosmetic Act.
If there’s a CBD product that is intended for use as a dietary supplement, food, drug, or cosmetic, then it’s under FDA regulation.
The FDA is in the process of assessing CBD’s safety. Its stance, for now, is that it’s illegal to add CBD to food or to use CBD as a dietary supplement for commerce between interstate lines.
- CBD supplements and food products can be sold within their state of origin or in states where these products are legal.
- CBD products labeled as dietary supplements or food can’t be sold across state lines.
- ‘Active hemp extract’ products usually bypass such regulations and can be sold across all 50 states.
- Products not advertised as supplements or foods with medicinal properties of CBD are exempt from FDA regulation.
Where Is CBD Illegal?
After the 2018 Farm Bill, as per federal law, CBD is considered legal in the 50 states. With that being said, since the law is still relatively new, some states haven’t fully embraced CBD. States are grouped into four varying jurisdictional categories .
These states have specific laws that allow retailers to sell hemp-derived industrial products.
Such jurisdictions include Oklahoma, Illinois, Indiana, Kentucky, Colorado, Alaska, South Carolina, Rhode Island, North Carolina, Oregon, New York, Missouri, Maryland, Wisconsin, Vermont, Utah, Tennessee, and Texas.
Under these jurisdictions, industrial hemp cultivated in compliant Farm Bill agricultural pilot programs is exempted from being classified as marijuana.
They include North Dakota, the District of Columbia, New Mexico, Montana, Kansas, and Hawaii.
Gray Area States
Even though Congress passed a bill legalizing hemp, and subsequently CBD, at the federal level, the hemp plant is still regulated, and some state laws conflict with federal laws, creating a gray legal area for CBD in America.
These jurisdictions include Connecticut, Florida, Minnesota, Mississippi, Nebraska, Delaware, Arkansas, Idaho, Georgia, Iowa, Massachusetts, Maine, Louisiana, New Jersey, New Hampshire, Washington, Virginia, and Pennsylvania.
States With Concern
These states don’t have explicit prohibitions regarding how industrial hemp-derived CBD products are sold. But recent pronouncements and law enforcement actions raise a bit of risk.
These places include California, South Dakota, Arizona, Alabama, Wyoming, West Virginia, South Dakota, Ohio, Nevada, Michigan, and West Virginia.
States Have Their Own Laws
Every state has its own set of policies and laws surrounding CBD possession, sales, manufacturing, distribution, and cultivation. To make things even more complex, many state legislatures are exploring proposed amendments to develop more CBD procedures and regulations.
In short, many states allow CBD usage for specific medical conditions. But laws may differ from state to state. But to stay within federal legalities:
- Legal CBD is defined by the majority of states as a hemp extract
- To be considered CBD, the THC concentration for a product ranges from 0.3% to 0.0%.
- While CBD is federally legal, several states still place partial or full restrictions on CBD product purchases. They continue to view it as being no different from marijuana.
So before consuming any CBD product, you need to look at restrictions in your state. But the bottom line is that the consuming and purchasing hemp-derived CBD products are legal in all 50 states.
It’s hard not to hear about CBD right now. With so much information and wide-spread availability, you may wonder if CBD products are legal in all 50 states.