Although I’ve written a lot on CBD laws during the past several months, I recently realized that I haven’t collected the gist all of those writings into a quickly-digestible summary post. So, here it is. It also lays out explicitly for the first time my “source theory” of CBD legality.
I hope you find it helpful.
The legality or illegality of CBD is primarily based on its source. This is strange, for sure. But it’s an unintended result of the case and statutory law that has grown up around hemp. In particular, hemp from abroad, which has been legal for many years, has a different “legal genealogy” from domestic hemp, which has only been legal to cultivate in the US since 2014.
Domestically sourced CBD: If CBD is extracted from the “marijuana” plant (ie, more than 0.3% THC) then it is Federally illegal. If it is extracted from the “industrial hemp” plant pursuant to state hemp laws that comply with the 2014 Farm Bill then it is legal within that state. Based on section 763 of the the 2015 Omnibus Spending Bill no Federal Funds can be used to interfere with hemp (or its products) so long as it was cultivated in a hemp-legal state. This provision explicitly extends to non-interference in states that have not enacted hemp laws. (This funding issue is essentially the same issue that was addressed in the MMJ context in the 9th Circuit McIntosh case.) So, from a practical standpoint state-legal hemp products are Federally legal throughout the US. However, since the Omnibus Spending bill only affects funding, it doesn’t trigger the Supremacy Clause (the clause in the Constitution that says Federal law trumps state law); therefore, states in which hemp and its products remain illegal and who do not utilize Federal Funds (to the extent that any such states actually exist) can enforce their anti-cannabis laws to prohibit CBD sales or use.
Foreign sourced CBD: If the CBD is sourced from an “industrial hemp” plant from abroad, and it contains less than 0.3% THC, it is Federally legal in all 50 states pursuant to the Hemp Indus. cases. Furthermore, the Supremacy Clause is implicated with respect to foreign sourced hemp since the laws arise out of Federal cases deciding substantive issues of law and not through a funding provision, making those CBD products legal under state law, too. This is the major legal method by which CBD merchants are able to sell CBD nationwide. (The quality of foreign-sourced CBD can be more difficult to ascertain, for sure, but that’s an entirely different issue from the legal status.)
FDA “overlay”: Finally, the FDA has recently stepped and announced that edible products in which CBD has been added violate the Food, Drug & Cosmetic Act. This doesn’t apply to products made from CBD rich hemp oil, only those edible products to which CBD isolate has been added. As you are probably aware, the FDA also contends that CBD cannot be sold as a dietary supplement.
Intriguing issues remain in the CBD world, such as how to acquire certified hemp seed, how state medical CBD laws (like Carly’s Law, Rylie’s Law, Hayleigh’s Hope, etc.) play into the larger CBD and hemp scheme, and how the laws for CBD isolate differ slightly from the laws for CBD -rich “hemp oil”, particularly with respect to the FDA. I intend to write posts on all of these subjects, so stay tuned and thanks for reading.