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CBD And The Law – Is CBD Legal?

CBD will likely soon be federally legal in direct contradiction of the Controlled Substances Act of 1970.

Thanks to the major discrepancies between State and Federal law, the legalities of CBD have remained pretty much a mystery to most of the American public. With CBD, it’s even more nuanced because it is non-psychoactive and was recently accepted as having medicinal qualities. Mainly, the confusion surrounding cannabis legality as a whole is the result of one of the biggest shifts in drug paradigm to the modern world. We are coming out of the 100-year dark age of prohibition and there are a lot of changes that legislation and regulation needs to keep up with.

If this article were written merely a year ago, we would have to go through CBD laws state by state and remind everybody that even if it’s legal at a state level, it wouldn’t be at a Federal level. We don’t have to do that anymore thanks to the 2018 Farm Bill, which finally gave the OK to industrial hemp – which contains a lot of CBD but not much THC. But it’s still not quite that simple. The Farm Bill doesn’t legalize all CBD products and states still have the choice to implement a legal hemp program or not. So there are some technicalities to hash out.

Hemp under the 2018 Farm Bill

The 2018 Farm Bill (you can find the text here) did a number of things for hemp, hemp cultivation and crop insurance. The most important thing with respect to CBD’s legal status is that hemp was removed from basically all definitions of cannabis. However, for a cannabis plant to actually qualify for all the legal definitions of hemp, it must contain 0.3% THC or less. If it contains any more, it is no longer considered hemp but rather, marijuana.

Even though farming hemp was legal before the 2018 Farm Bill, the amendments to the bill make it more expansive. Whereas before, pilot programs were granted for the cultivation of hemp for research purposes,  now hemp can be cultivated for commercial use. The bill also allows for the transport of industrial hemp across state borders for commercial use.

That doesn’t mean all CBD products are legal

And right here, the nuance emerges. CBD is commonly associated with hemp and it’s perfectly reasonable to think that the 2018 Farm Bill essentially legalizes all CBD products. However, CBD is also a cannabinoid present in the marijuana plant. In order for a CBD product to be legal, it must be manufactured from industrial hemp. That means that the source of the CBD product must be hemp itself, containing no more than 0.3% THC.

Buying, selling and transporting CBD products manufactured from industrial hemp is fully compliant with federal law. But buying, selling and transporting CBD products manufactured from marijuana (> 0.3% THC) is still illegal according to Federal law. This is a nuance because many states have legalized marijuana and for this reason, there are still many CBD products being manufactured from marijuana.

Technically, even if all the THC has been removed from a marijuana extraction, it is still illegal simply because the source of the extract was marijuana. This means that while most CBD products are perfectly legal, a small percentage of them are still manufactured from a plant that is illegal according to the Federal Government.

What legal CBD means for the US

For those who want to farm hemp, the 2018 Farm Bill means everything. For the first time since Americans were using hemp to make sails and ropes, hemp farmers will have full rights under the law. They will be able to claim insurance on their crop the same way an apple farmer or a dairy farmer could claim insurance on their product.

For the consumer, it’s another matter entirely. If there are any negative effects to be felt from the legalization of hemp, it will be the consumer who feels it first.

An unregulated CBD industry

It is something the cannabis industry has been dealing with on a whole since its reintroduction into modern society. For some reason, regulation seems to have come after the fact. The legalization of hemp across the USA has meant that many CBD companies have emerged from the darkness, and as yet, there isn’t a solid system for regulating those products.

In California, it has become mandatory to provide third-party testing on almost all cannabis products including CBD. This includes supplying the customer with information about cannabinoid content and the presence of any residual solvents or pesticides used in the growing process. Not all states require this testing and it was enforced by California’s state government rather than the federal government.

Until the industry is better regulated, the brunt of scam products will probably be worn by consumers. Until regulations catch up to the volume of CBD products being marketed towards Americans, it will be up to the consumer to discern between a valid and legal product and an illegal one.

It’s not all black and white with the FDA

While hemp as an industrial plant can now be grown for commercial purposes and used in the manufacture of goods, CBD oil remains somewhat of a grey area. The DEA can no longer go closing down CBD businesses on the grounds of federal law infringement. So it’s all up to the FDA as to how CBD oil will be regulated and the legalities surrounding this particular product. After all, it falls under the umbrella of the FDA, is for human consumption and is essentially marketed as a medicinal product.

Research is expected to skyrocket

Arguably the most exciting part of the 2018 Farm Bill (aside from the fact that Americans can now legally purchase hemp-derived CBD products) is that research into hemp and CBD is expected to skyrocket. Licenses to grow hemp are now readily available for applicants, meaning that hemp can be grown for research purposes. This has been a major hurdle for the cannabis industry, as obtaining cannabis for research purposes has been almost impossible. Now, researchers will legally be able to grow hemp and we are expected to learn more and more about the ways in which we can use this plant.

For the time being, hemp-derived CBD is legal

Before the 2018 Farm Bill, buying, selling or traveling with CBD was risky business. It was legal in one state but not in another. Americans can now relax a little bit because so long as their CBD products are hemp-derived, it’s legal to buy, sell and move around with it. This also makes hemp-derived CBD legal across the USA, meaning that those who don’t live in states with a medical marijuana program can legally purchase hemp-derived CBD online. The product is now increasingly accessible, even to those in rural parts of the USA.

It was monumental when the 2018 Farm Bill was passed, ending the prohibition of a plant that was once a cash crop for Americans. In fact, Americans were virtually at the forefront of hemp agriculture in the early 1900s, were manufacturing a myriad of products using hemp and were exporting them around the world. Now, CBD is one of those products blooming out of the USA and reaching the far corners of the world.

So yes, CBD is legal – that’s certainly something to celebrate. But consumers should always remember that their CBD is only legal (federally) if it comes from hemp, not from marijuana.

The Marijuana Tax Act of 1937 outlawed cannabis in all its forms, whether it possessed psychoactive properties or not. Essentially, the law was aimed at a chemical that had yet to be identified: THC.
Unfortunately for your CBD business, the rest of the cannabinoids –including CBD– were caught in the crossfire as Cannabis was given a carpet ban. The Controlled Substances Act of 1970 compounded the issue by identifying Cannabis plants, including Hemp, as a Schedule 1 drug.

Thankfully, lawmakers–including the most powerful politicians in the House and Senate–are currently reconciling a bill that would undo some of the harm done by the aforementioned laws. That’s great news for your business.