With the passing of the 2018 Farm Bill (also known as the Agricultural Improvement Act of 2018), it appears that CBD is federally legal across the United States. But is it really? The short answer is… sort of.
Legality on the Federal Level
Let’s start with the easy stuff: at the federal level, hemp-derived CBD oils are legal. This means that, as long as the CBD oil comes from the hemp plant, and the hemp was produced by a certified grower, it is above board and perfectly legal. It also must contain less than 0.3% THC (tetrahydrocannabinol) in dry weight, which, for CBD produced from hemp, is not difficult at all.
For those who do not know, THC is the psychoactive compound in the cannabis plant that produces the high. CBD (canabidiol) is the part that is generally used for its medicinal purposes. Marijuana generally produces more THC than CBD, whereas hemp generally produces more CBD than THC.
As stated before, as long as the CBD oil is produced using properly acquired hemp, it is acceptable. This, however, is where things get a little sticky with the law.
First, the grower of the hemp must be licensed and/or certified by the state in which they live to grow hemp. This process, like many others where the state has the final say in what is and is not acceptable, can vary widely in terms of requirements and costs. This means that producers can not purchase hemp from just anyone, but rather, they must make sure their provider is properly licensed to produce the raw product.
Second, the product the CBD manufacturer is using must be hemp. This means that any other variety of the cannabis plant (including marijuana or its many strains) can not be part of the CBD manufacturing process. In other words, if marijuana is used instead of hemp, the CBD oil produced is no longer federally legal.
As a matter of fact, if the CBD oil is derived from marijuana, it is considered a Schedule I drug according to the DEA.
Legality on the State Level
Each state has their own laws, legislations, rules, and governance regarding everything from legal parking to murder. With this in mind, it makes sense that each state would also have their own guidance in regards to CBD. However, the wheels of government turn slowly, so many states have not declared an official position on it yet.
All of this makes the CBD legality question even more complicated when you take into account that ten states (Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) have legalized the use of recreational marijuana. By extension, CBD oil produced using marijuana is also generally legal in these states.
There are also states that have legalised the production of CBD oil using marijuana, even though the use of marijuana recreationally is still illegal. Take note that these states often still require a medical marijuana license before they will legally allow the purchase of any products derived from marijuana, however. To tack on to the confusion, marijuana-based CBD oils are still completely illegal in some states as well.
All of this combined makes navigating the legality of CBD oil a real minefield. However, to make this easier, there are four broad categories that states can be grouped into to help CBD users navigate this minefield with a bit more ease.
The friendliest states have laws and legislation specifically allowing the sale and use of hemp-based CBD products. These include:
-Alaska -Oklahoma -New York -South Carolina -Vermont
-Colorado -Kentucky -North Carolina -Tennessee -Wisconsin
-Illinois -Maryland -Oregon -Texas
-Indiana -Missouri -Rhode Island -Utah
The accepted states exempt hemp-derived CBD from the definition of marijuana, provided that the hemp is grown on a Farm Bill-compliant plot of land. These include:
-Washington, DC -New Mexico
-Hawaii -North Dakota
Gray Area States
The gray area states do not explicitly make it legal in any law or legislation, but provide exemptions in the law instead for hemp-based CBD. These include:
-Arkansas -Georgia -Maine -Mississippi -Virginia
-Delaware -Idaho -Massachusetts -New Hampshire -Washington
-Florida -Iowa -Nebraska -New Jersey
-Conneticut -Louisiana -Minnesota -Pennsylvania
While the concerned states do not have any law specifically preventing or explicitly allowing the sale of hemp-derived CBD products, recent law enforcement decisions and legislation means that selling CBD products in these states might present a higher risk than others. These include:
-Alabama -Nevada -Wyoming
-California -South Dakota
-Michigan -West Virginia
These lists above do not necessarily reflect the exact laws in each state or that these states are more or less accepting of it. Rather, it is only a reflection of the laws in each state. Each of their individual legislations regarding CBD may have other requirements or stipulations that must be fulfilled before it is acceptable. For instance, some will require you to have a medical license to be able to purchase it, or others will require a particularly low THC content.
It is also important to remember that federal law does not override state, county, or city laws. Just as there are plenty of “dry counties” where the sale of alcohol is still not legal even almost a century after Prohibition was repealed, the same thing can happen with CBD – even the hemp derived varieties.
CBD and You: How to Protect Yourself
So, we have explored that every state has their own laws and their own positions on CBD. Users must research their particular state’s position and make sure they are well-versed in what is and, is not, allowed according to their local legislation.
However, it is also well-known that many states have not officially declared a position or released any guidance regarding it yet. With this in mind, finding CBD products will require some work on the end of the user. As with most things, experts recommend being dilligent about checking manufacturer’s labels to make sure they are staying within the bounds of the federal law, at the minimum.
Thankfully, all reputable manufacturers will have a marking on their product labels called the “Certificate of Analysis.” This label will allow consumers to check that their product has been properly evaluated. Here are some things to check for in the COA:
Hemp Origin: Always check to make sure the hemp is grown in the United States. This helps to confirm that the product is grown according to US regulations, thus keeping it legal.
Testing Methods: Make sure that the CBD product is tested in a third-party lab, and the testing conforms to “ISO 17025” standards. This is the US standard for testing whether CBD products are accurate to their labeled measurements of CBD and THC.
Potency: This portion of the COA will confirm that the measurements of CBD and THC listed on the product label match their actual measurements – both by container and by dosage.
If a manufacturer does not provide a certificate of analysis, it is best to avoid this manufacturer because this means it has not been tested by a third party and, as such, may not conform to the necessary regulations.
The best way for an individual to protect themselves from this is to make sure that the CBD products that the user purchases are certified through third-party tests and to only purchase from reputable institutions. These tests will confirm that your CBD oil conforms to your state’s standards, which will help keep the user from finding themselves in hot water through no fault of their own.
It is also important to keep in mind that, through random chance or pure accident, hemp plants can become marijuana plants. Pollen from other plants can cause two fertile hemp plants to begin producing an abundance of the THC that causes such a problem in the production of CBD using hemp. This, in turn, can contaminate the extraction of CBD because of the abundance of THC – thus rendering the extracted product federally illegal. This is why it is important for growers and people considering growing to always confirm that product is tested by a third party – it is better to lose one harvest than to end up in major legal trouble.
The bottom line is this: it is legal to purchase and use hemp-based CBD products in all fifty states. However, that does not mean that users do not have to still tread carefully.
The legality of marijuana is a veritable minefield of regulation and unconfirmed laws and legislations. In order to make sure the user stays on the right side of the law, it is best to stay on top of their state’s laws and regulations, and to do the legwork necessary to make sure they are doing everything they can to make sure that the law is on their side. Many states have not declared anything official yet, but it will be coming within the next few months and years.
Ultimately, however, the 2018 Farm Bill does have the potential to clear up many of the damning myths and misconceptions surrounding the use of CBD as a medical treatment. The FDA has recently approved the use of a CBD-based pharmaceutical called Epidiolex to assist in treatment of childhood epilepsy, and there are bound to be more to follow in its footsteps.