The legal landscape surrounding CBD is complex, and at times, downright confusing. If you have questions about CBD’s legal status, you’re not alone. We hope this article clears up some of that confusion and answers most, if not all your questions.
We’ll start by addressing hemp’s legal history, the federal laws on CBD, the state laws on CBD, and finish up with some tips on buying hemp-derived CBD products. Let’s get started!
The Legal History of Hemp
Hemp has been cultivated around the world for at least 10,000 years. It’s also had a significant impact on Western civilization’s economy, agriculture, and health for countless generations.
Yet, in recent history, hemp was classified as a Schedule 1 controlled substance by the Drug Enforcement Administration (DEA). Because this plant is part of the cannabis family, just like marijuana, it received a lot of scrutiny by politicians.
Laws first came into existence in 1937 with the passage of the Marihuana Tax Act. This Act didn’t criminalize the possession of cannabis, but it did assess large fines if taxes weren’t paid, including possible prison time.
Generally, taxes were levied on farmers who cultivated cannabis, physicians who prescribed cannabis-derived drugs, and pharmacists who sold cannabis-derived drugs to their patients.
Hemps Modern History
Then several decades later, in 1970, President Richard Nixon signed the Controlled Substances Act (CSA) into law. The CSA placed drugs, substances, and certain chemicals into one of five scheduling categories.
Schedule 1 is deemed the most dangerous and has the highest potential for abuse. Schedule 5 lands on the opposite end of the spectrum, whereby these drugs have a low potential for abuse and harm.
When the CSA went into law, cannabis was classified as Schedule 1. During this scheduling, both the hemp plant and the marijuana plant got grouped together.
Hemp was only recently removed from the list of Schedule 1 controlled substances. This de-scheduling occurred when President Donald Trump signed the Agricultural Improvement Act, or Farm Bill of 2018, into law on December 20, 2018.
Under this Farm Bill, the cultivation of hemp is legal so long as the hemp plant contains less than 0.3% THC by dry weight. For clarification purposes, CBD-derived from marijuana is still illegal because marijuana remains a Schedule 1 drug.
Federal Regulations Outlined in the 2018 Farm Bill
Farmers can legally grow hemp in the United States if they follow the regulations set forth in the 2018 Farm Bill.
The Bill explicitly states that “any cannabinoid—a set of chemical compounds found in the cannabis plant—that is derived from hemp will be legal, if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, associated state regulations, and by a licensed grower.”
Let’s look at an example together. Say a licensed grower produces hemp plants on his farm in Kentucky and abides by federal and state regulations. So far so good. Yet, the cannabinoid levels get tested during the manufacturing stage and THC is higher than 0.3%.
Because the farmer’s hemp plants contain more THC than is federally legal, the CBD in these plants cannot legally be sold within a CBD product.
However, if the farmer makes the correction to his next growing cycle, and continues to follow all other regulations outlined in the 2018 Farm Bill, then his operation and his hemp plants fall within the defined legal boundaries.
Who Has Authority over Hemp-Derived CBD Products?
Since the hemp plant is no longer a Schedule 1 controlled substance, the DEA doesn’t have authority over it. Instead, authority lies in the hands of the Food and Drug Administration (FDA).
Their authority over cannabis-derived compounds, like CBD, is stated in the 2018 Farm Bill, the FD&C Act (Food, Drug, and Cosmetic Act) and the Public Health Service Act. It is their responsibility to oversee and regulate the safety of our food, drugs, and dietary supplements.
The FDA held a public hearing on May 31, 2019, to listen to the public’s opinions, input, and thoughts on the sale of hemp-derived CBD products. The governing body is currently determining what position they’ll take to regulate CBD. In the meantime, they’ve made one point very clear.
Companies selling hemp-derived CBD products cannot claim their products prevent, diagnose, treat, or cure diseases. This is a blatant violation of the law and the FDA has sent warning letters to such companies asking to remove this language, or risk being shut down.
What about State Laws and Regulations?
Even with the passage of the 2018 Farm Bill, not all states are in agreement with the federal laws. Here are a few examples of state laws that affect the sale, purchase, and use of CBD for residents of that state.
Texas is a state with considerable restrictions on cannabis. They recently passed a law (HB 3703) that put into place a low-THC, high-CBD medical program. Under this law, only qualifying patients with disorders such as terminal cancer, ALS, epilepsy, multiple sclerosis, autism, and a few others have legal access to cannabis-based products, such as CBD oil derived from hemp.
Let’s look at Wyoming as another example. They’re one of 17 states without any effective medical cannabis laws. And the only law in place regarding hemp-derived CBD, states that consumption is only legal for patients who experience seizures. The scope is limited as you can see. In 2017, with the help of Wyoming residents, three bills were presented to state government officials, yet nothing has moved forward.
As of the date of this writing, the following 11 states (plus the District of Columbia) legalized recreational and medical cannabis:
- District of Columbia (D.C.)
The following 22 states legalized medical cannabis:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Dakota
- Rhode Island
- West Virginia
Combined that is 33 states, plus the District of Columbia, who have medical cannabis laws in place. That also means, these 33 states, including D.C., permit their residents to buy and use hemp-derived CBD products.
The remaining 17 states don’t have medical cannabis laws in place yet. And some of these states only permit the consumption of CBD for qualifying medical conditions. Other states restrict the consumption of CBD altogether.
Let’s take a closer look at the current laws of these 17 states.*
- Alabama: The passage of Bill 225 allows state pharmacies to sell CBD products with less than 0.3% THC.
- Georgia: The state only permits the sale, use, and possession of CBD products with 0% THC.
- Idaho: Cannabis of any form, including CBD products derived from hemp, is illegal.
- Indiana: The sale, possession, and use of hemp-derived CBD products are legal in this state.
- Iowa: CBD products are only legal for qualifying patients.
- Kansas: CBD products free of THC (referred to as CBD isolates) are legal.
- Kentucky: The sale, possession, and use of hemp-derived CBD products are legal in this state.
- Mississippi: Hemp-derived CBD oil, extract, or resin is only legal for epileptic patients who have a doctor’s recommendation. The contents of the oil must be at least 15% CBD and less than 0.5% THC.
- Nebraska: Cannabis of any form, including CBD products derived from hemp, is illegal.
- North Carolina: The sale, possession, and use of hemp-derived CBD oil are legal in this state. Yet, food, beverages, or supplements containing hemp-derived CBD is illegal.
- South Carolina: The sale, possession, and use of hemp-derived CBD products are legal in this state.
- South Dakota: The state only permits one CBD product, and that’s the FDA approved CBD drug called Epidiolex. All other CBD products (those derived from marijuana and hemp) are illegal in this state.
- Tennessee: Hemp-derived CBD products are only legal for epileptic patients with a doctor’s recommendation.
- Texas: Only qualifying patients with disorders such as terminal cancer, ALS, epilepsy, multiple sclerosis, autism, and a few others can legally consume hemp-derived CBD products.
- Virginia: Patients with any condition that have a written certification by a doctor can legally buy hemp-derived CBD products. As long as the product contains at least 15% CBD, or THC-A, and has less than 5% THC.
- Wisconsin: The sale, possession, and use of hemp-derived CBD products are legal in this state.
- Wyoming: Only qualified patients with seizures can legally use hemp-derived CBD products.
Hemp is no longer a Schedule 1 controlled substance. Because of the change in classification, the FDA now governs and regulates the sale of hemp-derived CBD products.
At the federal level, CBD derived from hemp is legal if it contains less than 0.3% THC. Other requirements from the 2018 Farm Bill must also be followed for hemp to retain its legal status.