Is CBD Legal in the USA?


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One of the most common questions from new and existing cannabidiol users today: Is CBD legal? The answer to this question is not currently clear-cut, though there are some important emerging trends.

In this article, we are going to take a look at the key topics surrounding the legality of CBD. There are federal, state, and practical situations at play that are defining the landscape around production and consumption of cannabidiol.

As a pro-CBD website, we've worked hard to ensure that this article is written with an unbiased point of view and accurately referenced. We believe it is important to disclose the legal details surrounding this topic. As a consumer, this article will help educate you to make your own decisions about CBD usage.

Understanding Cannabis Terminology

Before we dive into the specifics around the legality of Cannabidiol, it's important to understand what CBD is and how it relates to the Cannabis plant. This understanding is key to understanding the laws at play. Please note that the below definitions are not exhaustive, but focused on the core components crucial to our discussion on CBD legality.

Cannabis is a genus of plant that generates compounds called cannabinoids. There are over 100 cannabinoids that can be isolated from the cannabis plant. Among these are two compounds at the core of our conversation here: Cannabidiol (CBD) and Tetrahydrocannabinol (THC).

  • CBD is a non-psychoactive compound with a wide variety of potential health benefits.
  • THC is a psychoactive compound that produces the euphoric 'high' effect associated with marijuana use.

The terms hemp and marijuana are used primarily to describe two varieties of cannabis:

  • Hemp is used to describing non-psychoactive cannabis with low-THC content. Hemp is produced for a wide range of reasons and is known to have over 25,000 product applications.
  • Marijuana is used to describe cannabis which is psychoactive due to its high-THC content. Marijuana is produced primarily for consumption as a medicine or recreational drug.

Understanding CBD Oil Extraction

It's important to clarify that most CBD oil is extracted from hemp sources. This hemp is specifically grown for this purpose and features low-THC and high-CBD profile. The resulting oil then shares the same properties.

  • CBD oil extracted from the full hemp plant creates a full-spectrum cannabinoid profile including trace amounts of THC. In practice, this oil is non-psychoactive due to its low THC content. In fact, many manufacturers are aiming for specific maximum amounts of THC, usually 0.3% by weight or less. This specific THC was determined by the definition of industrial hemp in the 2014 Farm Bill which we discuss below.
  • There are emerging methods of removing cannabinoids from extracted CBD oil. These methods have been used to successfully remove single cannabinoids, or leave only a single cannabinoid. In practice, these methods are often used to make full-spectrum CBD oils with the THC removed or to create isolates containing only the single CBD cannabinoid.

Studies have found that full-spectrum CBD products are more effective than single-molecule CBD isolates. This is due to what is referred to as the 'entourage effect', or the ingestion of multiple cannabinoids found in full spectrum CBD. This information has pushed the industry to focus on the production of full-spectrum oils.

Federal Law: CBD Classified as Marijuana is Illegal

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Despite the quickly shifting landscape of CBD, laws at a federal level move slow and are the harshest on CBD. Laws established in the 1970's still classified some forms of CBD products as illegal. Newer rulings look to adapt to the shifting markets and show promise for CBD.

The Controlled Substances Act of 1970 Says Full-Spectrum CBD is Illegal

Note: the spelling of "marihuana" used below is due to the use of the outdated term from the original Marihuana Tax Act of 1937 (1). The use of this term is referencing the now common term "marijuana".

In 1970, the Controlled Substances Act declared marijuana a Schedule I illegal drug. (2) The text of the Federal Food, Drug, and Cosmetic Act (FD&C) 21 U.S. Code § 802 (16) describe what parts of the plant do qualify as marijuana (3):

The term “marihuana” means all parts of the plant Cannabis sativa L.

  • whether growing or not;
  • the seeds thereof;
  • the resin extracted from any part of such plant;
  • and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

Additionally, the text describes which parts are not considered marijuana:

Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

It is important to note that hemp oil extracted from the stalks or seeds of hemp is not CBD oil. The cannabinoid content in these parts of the plant is extremely low. There has been much confusion and marketing around hemp seed oil, which is not a CBD product.

Federal Law Allows States to Produce Hemp for Research

In 2014 President Barack Obama signed the Agricultural Act of 2014 - or the 2014 Farm Bill. (4) The bill allows states to implement programs to legally grow industrial hemp. These programs allow for hemp to be grown for research and educational purposes.

The bill created the often referenced definition of 'industrial hemp':

The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. (5)

Though these changes have not legalized hemp production en masse, they have helped push the CBD industry forward. Echoes of these changes can be seen in many state laws and in practice by current CBD manufacturers. Specifically, there are now a wide number of CBD oil products containing 0.3% THC or less.

These laws were further strengthened with the 2018 Farm Bill which further expanded the language of farming programs to include tribal lands, reservations and U.S. territories. Previously the 2014 bill only used the language 'states'.

New Drug Code 7350 Says Single Molecule CBD is Legal

In 2016 a new drug code specific to marijuana extracts was published by the US Department of Justice. This rule, Drug Code 7350 for Marijuana Extract (6) and the supplemental clarification (7) outline specifics for what extracts classify and do not classify as marijuana. These rules apply only to "marijuana" as defined in the 1970 Controlled Substances Act we discussed above.

Specific to CBD, these new publications maintain that multi-cannabinoid marijuana extracts still fall under the Schedule I classification. What the code does clarify is that an extract containing only CBD is not classified as marijuana and is thus legal:

DEA response: For practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids.\1\ However, if it were possible to produce from the cannabis plant an extract that contained only CBD and no other cannabinoids, such an extract would fall within the new drug code 7350.

Summary of Federal Law on CBD

  • The Controlled Substances Act of 1970 specifies that CBD extractions containing a full spectrum, multi-cannabinoid profile are illegal. This is due to the classification of these extractions as marijuana because they are a 'derivative' of the cannabis plant.
  • The 2014 Farm Bill allows states to create industrial hemp programs to for research purposes.
  • New Drug Code 7350 for Marijuana Extracts clarified that CBD extracts that contain no amounts of other cannabinoids are legal because they are not classified as marijuana.

State Law: Nearly All States Are Pro-CBD

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In sharp contrast to federal law, local state laws have grown consistently pro-marijuana over the last 20 years. Part of this is due to the legalization of medical and recreational medical marijuana. These laws include the entire cannabis plant which includes CBD.

In addition to marijuana legalization at a state level, there has been a surge in CBD-specific acceptance in states without marijuana laws. These laws have primarily come about due to CBD's use as an effective seizure medication.

  • Currently, there are 29 states that have legalized medical and/or recreational marijuana use.
    • The residents of these states can purchase CBD products through these programs. ProCon keeps an updated list with details by state. (8)
  • Currently, there are 17 additional states that have passed laws specific to cannabidiol use.
    • These states have passed laws allowing the use of Cannabidiol products that contain no or minimal tetrahydrocannabinol (THC). These rulings often originate due to cases around the treatment of epilepsy or seizures in severely ill children. ProCon keeps an updated list with details about all the current rulings by state. (9)
  • Currently, this means 46 out of 50 states have some type of pro-marijuana/CBD law.

State Laws in Practice

Almost exclusively, these state laws require some sort of registration by users. While this may be observed at a medical marijuana level, CBD products are being purchased in a 'grey area' as they are being purchased without any form of registration.

Some progress is being made on this front as Indiana passed Senate Bill 52 which allows the sale of CBD products containing no more than 0.3% delta-9 THC. This bill made Indiana the first state to allow the sale of CBD to the public. (10)

The DEA's Stance on CBD

In November 2017, Indiana based WTHR published an article outlining the DEA's stance on CBD oil. (11) The article features an interview with U.S. Drug Enforcement Administration spokesman Rusty Payne. The article begins with the disclaimer from Payne that:

"Anybody who's in violation [of the federal laws] always runs that risk of arrest and prosecution,"

From there the tone of the article changes to highlight the medical benefits are obvious: "There's a lot of anecdotal evidence out there – there's a lot of people out there – telling us the same thing you are: that this stuff has helped their family."

Payne goes on to say:

"I cannot blame these people for what they're doing. They are not a priority for us … 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."

"We are in the middle of an opioid crisis in this country. That's our biggest priority right now," "People are not dying from CBD. Some would argue lives are being saved by CBD. Are we going to get in the middle of that? Probably not."

FDA Approves Pharmaceutical CBD Medicine

On June 25th, 2018 the FDA made a groundbreaking approval of the drug Epidiolex. The prescription drug contains cannabidiol and is used to treat two rare and severe forms of epilepsy, Lennox-Gastaut syndrome, and Dravet syndrome. (12)

This approval presents an opportunity for re-scheduling the federal status of CBD. The FDA provides recommendations to the Drug Enforcement Administration (DEA). CBD is currently a schedule 1 substance - defined as: "drugs, substances, or chemicals are defined by the federal government as drugs with no currently accepted medical use and a high potential for abuse."

This obvious contradiction could be a sign of things to come for re-scheduling.

Conclusion

Despite CBD being illegal at a federal level, states and US citizens recognize the medical effectiveness of the substance. This has caused a massive pro-CBD push resulting in a surge in public availability despite the current legal landscape.

The result is that CBD products produced from hemp are being sold locally, online, and being shipped across the USA. Many US citizens accept what appear to be decreasing risks associated with producing and acquiring the CBD products for the medical benefits.

Sources:

  1. https://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937
  2. https://www.dea.gov/druginfo/csa.shtml
  3. https://www.law.cornell.edu/uscode/text/21/802
  4. https://www.congress.gov/bill/113th-congress/house-bill/2642
  5. https://www.law.cornell.edu/uscode/text/7/5940
  6. https://www.deadiversion.usdoj.gov/fed_regs/rules/2016/fr1214.htm
  7. https://www.deadiversion.usdoj.gov/schedules/marijuana/m_extract_7350.html
  8. https://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
  9. https://medicalmarijuana.procon.org/view.resource.php?resourceID=006473
  10. https://iga.in.gov/legislative/2018/bills/senate/52
  11. https://www.wthr.com/article/dea-feds-wont-arrest-cbd-oil-users-neither-should-indiana
  12. https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm

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