** DISCLAIMER: the following is not legal advice. Consult a lawyer and the laws in your state before buying or selling CBD products. **
Everybody who buys or sells CBD wants to know if CBD is legal or not. If you want your questions answered, watch my interview with cannabis lawyer, Rod Kight.
If you don’t have time to read the whole post you can just scroll down to the facts you need to know at the bottom of the post.
In December 2016, the DEA declared that CBD is and always has been considered a schedule 1 substance, falling under the same category as “marijuana extracts”.
But the situation is far more complex. What the DEA failed to consider is where the CBD is being sourced from. CBD can be sourced from two distinct varieties of cannabis plants: marijuana and industrial hemp.
Marijuana is casually defined as a cannabis plant containing more than 0.3% THC (when compared to hemp). A more accurate definition of marijuana is: all parts of the plant cannabis sativa L, with the exception of certain specific parts of the plant, including, the mature stalk, non-germinating seeds, and a few other parts, all of which contain minuscule amounts of THC.
Industrial hemp is casually defined as a cannabis plant containing no more than 0.3% THC. The following is a more in-depth, legal definition of industrial hemp ala our favorite cannabis lawyer, Rod Kight: Industrial hemp is a multi-part definition: (1) the plant cannabis sativa L., (2) grown pursuant to a State’s pilot research program, (3) containing less than 0.3% THC on a dry weight basis.
I repeat, you can source CBD from both marijuana and industrial hemp. They both contain CBD in varying quantities. The legality of CBD is determined by where it’s sourced from.
CBD sourced from marijuana is legal in states who have medicinal or recreational programs for marijuana use. Examples of states like this are Colorado and Washington.
CBD sourced from industrial hemp is legal in states with hemp farm bill programs for growing industrial hemp. CBD sourced from industrial hemp is also legal in states which have laws which allow for use of CBD products but may not allow for the use of marijuana products. An example of one of these states would be Kentucky or Texas. See the chart below.
Keep in mind that cannabis laws currently vary state by state. In the future, this may change but for now, each state makes their own independent decisions on cannabis law.
If you don’t know what I mean by “farm bill programs”, I will explain that now. In the United States, the Farm Bill is the declaration of policy regarding agriculture released by the federal government (source: Wikipedia). In 2014, as part of the United States Farm Bill, it was stated that certain states would allow for the licensed growing of industrial hemp under the supervision of each state’s department of agriculture.
This was section 7606 of the 2014 Farm Bill. You can read that section here, if you are interested.
States like Colorado and Kentucky began active industrial hemp farming operations soon after the passing of the 2014 Farm Bill. In addition to hemp fiber and hemp food production, a significant amount of hemp is being grown for the production of CBD products. The DEA mistakenly ignored this in their blanket statement that all CBD is illegal. This is why the Hoban law group, one of the nations leading cannabis law firms, is suing the DEA.
So CBD sourced from industrial hemp grown in a state authorized to grow industrial hemp is not illegal. Whoo – glad that’s out of the way. But there’s more…
See most of the CBD products made from industrial hemp are, like many products, sold online and delivered across state lines to consumers. A few minutes on Amazon yields plenty of search results for “CBD Oil” shipping to all 50 states.
So there is an important question which remains to be answered: is shipping CBD hemp oil products across state lines legal? To find the answer to this question I spoke to one of the nation’s best lawyers in the cannabis space, Rod Kight.
In our conversation, Rod clarified why interstate commerce of CBD products is protected under Congress. In late 2015 Congress released a statement in the Omnibus Appropriations Act of 2016 (P.L. 114-113) (“the Funding Act”) which reads:
“None of the funds made available by this act or any other act may be used… to prohibit the transportation, processing, sale or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”
According to Rod, the above statement from Congress made CBD hemp products legal to buy across all 50 states, so long as the CBD was sourced from hemp grown by a licensed grower in a state with a hemp pilot program. Under this statement, no funding could be used to prohibit the transportation, processing, or sale of hemp products across state lines.
Some of the major players in the CBD hemp oil business are sourcing their CBD oil from hemp grown overseas, often in Europe. We at CBD School support domestically grown hemp over overseas hemp for many reasons but this article is about legal issues so we will keep the focus on the law.
Internationally sourced CBD is protected under a different legal code than the US Farm Bill. I am referring to a 2004 legal ruling of the case HIA vs DEA. The ruling established that non-psychoactive hemp products containing only trace amounts of naturally occurring THC are, and always have been, legal to import into the US.
CBD companies who choose to source from overseas generally extract CBD from the parts of the hemp plant considered exempt from the definition of marijuana: hemp stalks, fiber, oil and cake made from hemp seed, and sterilized hemp seed itself.
Now we need to go over the problem of individual state laws. Many hemp growers and CBD processors are asking themselves, “Wait a sec…what if hemp is legal in my state but I want to ship it to your state where I am not sure if it’s legal?”
The current problem is that while many states have hemp laws, there are some states that just don’t have hemp laws at all. What that means is they don’t have laws against hemp, but they also don’t have laws that allow for hemp. What these states have are laws against the use of cannabis in any form, and that includes non-psychoactive products like CBD hemp oil. Examples of these states are Idaho and West Virginia.
CBD may be illegal under state law in those particular states since they do not distinguish between industrial hemp and marijuana. However, Rod stands by the legality of CBD because it is not listed as a controlled substance in the controlled substances list. THC is listed, but CBD is not.
Rod’s argument is that because CBD is not listed as a controlled substance, and because it is sourced from a lawful plant, it is thus federally legal. This is what he advises his clients. With that said however, Rod still cautions his clients to be careful when shipping to states which have no hemp laws and which lump hemp in with their marijuana laws. With these states, there is a possibility of some interference from the state of the recipient.
Rod is currently working and doing his best to clarify the interstate commerce laws regarding CBD hemp products. It is unfortunately not a black and white issue at the moment.
Now with that said, there are still precautions you can take as a CBD distributor to protect yourself:
If you are a buyer of CBD products, i.e. you buy CBD products in small quantities for personal use, you need to be aware of the hemp laws in the state where you live. While this isn’t legal advice, if you’re buying CBD products in small quantities for personal use, you are very unlikely to be targeted by anyone taking legal action. Still, we recommend you know the laws of your state. Most of the legal concerns however will be for anyone who is importing large quantities (bulk CBD products) into a state that doesn’t have hemp laws.
The people who import bulk quantities of CBD products are usually brick and mortar retailers of CBD products. These are the people who should be more concerned about the legal status of CBD in their states. I had this fact confirmed by one of the Hoban group lawyers, Garrett Graff. So far, these are the only distributors who have had any action taken against them. Some retailers in CBD unfriendly states have been asked to remove the products from their store shelves.
CBD laws are changing every day and will likely change again soon. Let’s remain optimistic that cannabis laws will continue to only change for the better so that more people can access the benefits of the cannabis plant.
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