Is CBD legal? A lawyer’s perspective.

Is CBD legal?

It depends.

As a hemp lawyer the single most misunderstood issue I see is the legal status of CBD. Informal legal opinions abound and positions about the issue cover the spectrum from “CBD is totally legal” to “CBD is totally illegal.” As with most things, the truth lies somewhere in between.

On one end of the spectrum is the view espoused by some CBD companies that CBD is “legal in all 50 states.” As I’ll describe in this article, this view is accurate only within a very limited, and mostly unhelpful, context. The proponents of the “CBD is completely legal” position primarily base their position on the fact that CBD is not listed as a scheduled (ie, illegal) substance in the Federal Controlled Substances Act. This particular view is patently wrong. If it weren’t, then there would be no need for individual states to enact medical CBD laws, which many have done. It also takes an overly simplistic view of the Federal definition of cannabis, which includes its component parts. CBD is a component part of cannabis.

On the other end of the spectrum is the opinion, espoused by the DEA, that all CBD is illegal. This view is based primarily on what I just mentioned, namely, that CBD is a component part of cannabis and is thus necessarily prohibited since cannabis is an illegal schedule I drug. This view is plainly overbroad and incorrect. There is a patchwork of statutory and case law that clearly carves out exceptions to the illegality of cannabis. These exceptions, though narrow, are real and allow for CBD to be produced and sold under certain circumstances.

In this blog article I will attempt to clarify the legal status of CBD and it’s cousin in-law, hemp.

What do you know about CBD?

What do you know about CBD?

I’ll start by introducing CBD. For those who are new to the subject, CBD stands for cannabidiol. It is one of over 85 active cannabinoids in the cannabis plant. Commonly referred to as “the medical” part of the plant, CBD is non-psychoactive (as opposed to tetrahydrocannabinol “THC”) and has a number of properties that are getting noticed by the medical community, including, but not limited to: pain relief, assistance with reducing seizures, anxiety relief, inhibition of tumors, anti-inflammation, and many other properties which are currently being researched. Although it is certainly not the only cannabinoid with medical properties (THC, despite it’s notoriety as the “get you high” component of cannabis, has a number of well documented medical benefits), CBD rightfully reigns supreme as the leader of the medical marijuana (“MMJ”) movement.

So, is CBD legal to use? To manufacture? To ship across state lines? These are all good questions with complicated answers.

Let’s start with the basics. CBD comes from Cannabis Sativa L (“cannabis”), which is illegal under the Federal Controlled Substances Act (“CSA”). 21 USC § 801 et seq. Cannabis is a Schedule I drug, which means that it has “no currently accepted medical use and a high potential for abuse.” Crazy? Yes. Wrong? Absolutely. But it’s the law.

Importantly, the following parts of cannabis are not included in the CSA definition:

“[T]he 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.” 21 USC § 802(16)

CBD produced from any parts of the cannabis plant in the above list of exceptions is legal. That sounds good, right? Wrong. From a practical perspective the exceptions aren’t much help at all. Cannabis seeds do not contain any CBD and the mature stalks contain very little. CBD is produced by the cannabis plant’s trichomes, which are glandular hairs. Cannabis seeds have no such hairs and the stalks contain relatively few compared to the plant’s flowers (also known as “buds”) and leaves. So, although it is technically legal to extract and sell CBD from mature cannabis stalks the stalks don’t produce much CBD and are thus a poor source for it. Additionally, and more importantly, there are several methods to extract CBD from the stalks. Many of these methods use chemical processes that leave residual solvents in the CBD paste that are unfit for human consumption. This obviously undermines using CBD products derived in this manner for their health benefits.

Aside from the limited quantity of CBD in the stalks and the problematic extraction issue I just discussed, the primary obstacle to obtaining CBD from mature cannabis stalks is that, with one exception (which I’ll address below when I discuss industrial hemp), it is illegal under Federal law to grow cannabis. Even though the mature stalks are legal to possess, in order to become “mature” they must first go through a phase in which they are not fully developed and contain THC levels which are in violation of the CSA. Companies that are willing and able to extract CBD from the stalks have, until very recently, had to do so outside the United States to circumvent this problem.

Hemp that contains little to no THC and its products are legal to import and sell in the US. This is due to a 2003 Federal court case called Hemp Industries Association, et al, v. Drug Enforcement Administration, 333 F.3d 1082 (9th Cir. 2003) (“Hemp Indus.”) The Hemp Indus. case involved a dispute between manufacturers of hemp products and the Drug Enforcement Agency (“DEA”) over three DEA rules regarding hemp and THC. The primary rule at issue for our purposes was the first one, which purported to interpret both the CSA and the DEA regulations to ban all naturally-occurring THC, including the THC found in hemp seed and oil, on Schedule I. 66 Fed. Reg. 51,530 (October 9, 2001) This rule would have made it illegal for hemp manufacturers to produce and sell their products, even ones that contained only trace amounts of THC.

The 9th Circuit Court of Appeals found that the DEA had exceeded its authority in enacting this rule and struck it down. Although the Hemp Indus. case is really a case about regulatory procedure and what constitutes an “interpretive rule” which requires one set of procedures to enact versus a “legislative rule” which requires different and more cumbersome procedures to enact, the practical effect of the case was to strike down the DEA’s rule banning hemp products that contain only trace amounts of naturally occurring THC. This opened the door for companies to import hemp and products derived from hemp (such as CBD and hemp oil) from countries that allow it and to sell them throughout the US.

I should note at this point that the DEA has the authority to issue permits to grow hemp. As you might imagine, these licenses are rarely issued.

So, to recap before moving on, what I’ve discussed so far is that hemp is the same plant species as cannabis. As such, it is only legal to grow under Federal law with a DEA permit, which is rarely given, or pursuant to state laws that comply with the 2014 US Farm Bill, which I’ll discuss in a moment. It is legal to import and then sell industrial hemp and CBD products made from the mature stalks of the cannabis plant if they contain little to no naturally occurring THC. The problem with importing CBD products made from hemp stalks is that the stalks contain very little CBD (seeds contain none) and therefore the extraction methods often involve the use of chemicals and industrial solvents that are harmful for human consumption.

Moving forward, the next key legal piece involving CBD is The Agricultural Act of 2014, commonly referred to as the “2014 Farm Bill”, enacted by the US Congress in 2014. For our purposes I want to discuss a section of the 2014 Farm Bill called “Legitimacy of Industrial Hemp Research.” 7 USC § 7606. In this section, Congress carved out an exception to the CSA’s definition of cannabis for what it calls “industrial hemp”, which it defines as “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.” 7 USC § 7606(b)(2).

According to the 2014 Farm Bill, a State department of agriculture may grow or cultivate industrial hemp if it satisfies two key elements. First, the industrial hemp must be grown or cultivated “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research.” Second,the growing or cultivating of industrial hemp must be “allowed under the laws of the State in which such institution of higher education or State department of agriculture is located and such research occurs.” 7 USC § 7606(a). As of this writing, at least 23 states have taken the plunge and enacted laws relating to industrial hemp. Generally speaking, these states have taken 3 approaches: (1) They have established commercial industrial hemp programs; or (2) They have established industrial hemp research programs; or (3) They have enacted studies of industrial hemp or the industrial hemp industry.

For our purposes the most important of these three approaches is the first one, in which states have established commercial industrial hemp programs. At first glance this approach may appear to conflict with the 2014 Farm Bill since it requires any hemp cultivation or growth to be for purposes of research conducted under an agricultural research pilot program. However, since the 2014 Farm Bill does not dictate or otherwise specify the manner in which the states may carry out their pilot or other hemp related agricultural research programs, some have taken the view that a state may comply with the 2014 Farm Bill’s provisions by enacting laws that allow the private commercial sector to grow and cultivate hemp. Indeed, if a state is conducting research on, say, the economic impact of a hemp industry within its borders it only makes sense to involve the private sector in order to obtain real facts and figures rather than speculative ones based on academic models.

The states that have established commercial industrial hemp programs include: California, Colorado, Indiana, Kentucky, Maine, Montana, North Dakota, Oregon, South Carolina, Tennessee, Vermont, Virginia, and West Virginia. Additionally, I should note that the General Assembly of North Carolina, my home state, has also passed a bill establishing a commercial industrial hemp program. The NC bill should become law within a couple weeks of this writing, if not sooner.

The practical impact of state-based commercial hemp programs on CBD cannot be overstated. What this means, in essence, is that individuals and businesses can now legally obtain CBD from within the US. More importantly, they can extract it from the cannabis flower and leaves instead of the stalk. This should allow for better quality CBD than what can be obtained overseas from industrial stalks and from offshore companies that manufacture CBD as an afterthought or byproduct of other markets for industrial hemp, such as fabrics and construction materials. Additionally, because the Federal law allows the growth and cultivation of cannabis plants with up to 0.3% THC instead of trace amounts or less, US businesses can access a wider range of cannabis plants, including those specifically bred to have high concentrations of CBD.

This is all good news for CBD. However, it does not mean that homegrown CBD is now legal throughout the US. In fact, it means just the opposite. CBD extracted in the US is only legal in the states that allow it. It cannot be extracted, manufactured, bought, sold, or possessed by anyone in a state in which it is not legal. (An exception is CBD which is extracted solely from the mature stalk of the plant, which is already legal as I’ve discussed above.) Importantly, it cannot be shipped or transported from one state to another state, not even to another state in which it is legal. So, if you live in a state which has not enacted a hemp law pursuant to the 2014 Farm Bill then you may not legally possess American made CBD.

[NOTE: I’ve written an update on the legal status of CBD. Click here to read the update.]

And, of course, in the larger picture, the laws related to CBD remain overly restrictive, even in states that allow it. The most important difficulty is the 0.3% cap on THC. To start with, this is an arbitrary figure. The 0.3% THC ceiling, which is the current world-standard, is based on the work of Canadian scientist Ernst Small, who conducted research on cannabis and published “The Species Problem with Cannabis” in 1971. In his book, Small stated that there isn’t a natural point at which the cannabinoid content could be used to distinguish strains of “hemp” from cannabis. Despite this he drew an arbitrary line on the continuum of cannabis types, and simply decided that 0.3 percent THC was the proper line. The line has held. And because the priority in growing hemp plants must be to keep THC levels low due to our restrictive laws, research and development of new strains is necessarily hampered and business is dampened. The 2014 Farm Bill ensures that it’s a much better strategy to focus on staying well below the line than to branch out to create better CBD strains and, in so doing, flirt with surpassing the legal THC limits. For the same reason, it also limits the development of new seed varieties.

CBD laws are complex and have important but subtle nuances. CBD derived solely from mature hemp stalks, whether from a state which has legalized hemp growth and cultivation or from overseas, is legal throughout the US. But, for the most part this kind of CBD tends to be low quality due to its scarcity in the stalk and the methods necessary to extract it. CBD extracted from the flowers and leaves, which tends to be more abundant and easier to extract using non-toxic methods, is only legal if produced, sold, and possessed in a state which has enacted hemp laws pursuant to the 2014 Farm Bill.

Please do not hesitate to contact me if you have questions about CBD or hemp law.

10-15-2015

47 thoughts on “Is CBD legal? A lawyer’s perspective.

  1. Terri Boyd

    Hey Rod,

    I love your blog! This was very informative & helpful.
    Here’s my thought then questions:
    NC industrial hemp bill states. <.3% thc
    But the NC Medical CBD bill was amended from .9% thc to .5% thc, still above the thc levels set by federal hemp bill, which allows for shipping across state-lines @.3% thc if I understand correctly!

    * So NC bill say is it legal to cultivate a hemp strain high in cbd w/ <.5% thc, extract oil from bud and leaves but can only sell within the state of NC. Is this the case?
    * Is it legal to ship "CBD extracted from whole plant" from bud and leaves to another state?
    * Meaning if grown in NC, can I sell and ship to another state who has a passed bill allowing for the use of medical cbd oil. Or can it only be sold within NC?

    Thanks for your advise Rod!

    Sincerely,
    Terri

    Reply
    1. Rod Kight Post author

      Thanks, Terri! I appreciate your comments and good questions.

      As for the NC Medical CBD bill (HB 766, which went into effect on August 1 of this year), it allows for CBD only under very limited and specific circumstances. Called the “North Carolina Epilepsy Alternative Treatment Act”, it allows caregivers of patients with intractable epilepsy to possess hemp extract when they comply with all of the statutory terms. Importantly, the NC Medical CBD bill does not comply with 2014 Farm Bill as it relates to hemp. This means that, unless the CBD oil that is used is purchased and produced from mature hemp stalks or sourced solely in NC pursuant to the industrial hemp bill and contains less than 0.3% THC, it remains illegal under Federal law.

      As I read them, your other questions pertain to shipping CBD and/or hemp across state lines. Unless the CBD is sourced from mature hemp stalks and contains only trace amounts of THC then it is illegal to transport across state lines. It is similarly illegal to transport hemp across state lines, even to other states where it is legal, unless you are only transporting the mature hemp stalks.

      As you can see, we’ve still got a long way to go, particularly on the Federal level, before the laws catch up with the reality of the medical necessity of cannabis.

      I hope this helps. Please feel free to contact me if you have any other questions.

      Reply
    2. Worried

      The vapor shops advertise that using CBD oil will NOT cause you to fail a random drug test and lose your CDL drivers license. Is this true or not?

      Reply
      1. Rod Kight Post author

        Good question, Terri. Unfortunately, that’s not necessarily true. There is no guarantee that you won’t fail a cannabis drug test if you only take CBD oil. I don’t have any specific information about the qualifications for holding a commercial driver license (“CDL”) since they are state-specific; however, if failing a drug test is a criteria for retaining a CDL then it can lawfully be revoked if you fail the test. Obviously, this needs to be reformed, but at the moment there are no guarantees.

        Reply
  2. Scott Lewis

    The passing of the revised version of Bill 766 this year was fantastic and the Hemp farming bill im sure will be signed very soon. People (specifically politicians) feel much better using the word “hemp” than using “marijuana”, which suits me fine because the end result is that many nc residents can find relief from their ailments. My hope is that the pending farming bill will open the door for people like me wanting to grow a few plants at their home. It would be great to plant about 3 “hemp” plants in my backyard, harvesting a few pounds of hemp flowers and producing an oil to help with my intractable epilepsy. I do wish that they would have increased the allowable thc content to match that of Bill 766,but, baby steps is fine by me.
    There is one piece of wording that worries me about the farming bill. It says you must obtain and have certification of the seeds that they are “hemp seeds”. These are the industrial type seeds and are not beneficial to someone like me seeking a “flower producing” cannabis plant. If this one line had been omitted, it would allow someone to obtain a low thc content cannabis clone.

    Reply
    1. Rod Kight Post author

      Thanks for your comments. I agree about the seed issue. It’s a big problem that needs resolution. I’m hopeful that the NC Hemp Commission will adequately address it for NC residents, like you, who want to grow their own medicine.

      Reply
  3. Cathy Stevens

    Rod – thanks so much for keeping us all informed. So, is it legal to grow Palmetto Harmony b/c of the Hemp Law? Thanks!

    Reply
    1. Rod Kight Post author

      Hi, Cathy. It is not yet legal to grow hemp in NC because our regulations have not been issued. However, from what I understand of SC’s hemp law, Palmetto Harmony is legally growing its hemp. I’ve personally met Janel from Palmetto Harmony and believe that she’s on the cutting edge and has a great product.

      Reply
  4. Ed Mayfield

    Hello and thank you for your information. My research suggests the US Government exempts therapeutic hemp or cannabidiol (like Charlotte’s Web) from the illegal drug category:

    Charlotte’s Web Medical Hemp Act of 2014 (H.R.5226)
    https://www.congress.gov/bill/113th-congress/house-bill/5226/text

    Amends the Controlled Substances Act to exclude therapeutic hemp and cannabidiol: (1) from the definition of “marihuana,” and (2) from treatment as a controlled substance under such Act. Defines: (1) “therapeutic hemp” to mean the plant Cannabis sativa L. and any part of such plant with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis; and (2) “cannabidiol” to mean the substance cannabidiol (CBD), as derived from therapeutic hemp.

    Declares that nothing in this Act shall restrict any activities related to the use, production, or distribution of marihuana in a state in which such activities are legal under state law.

    It seems, therefore, that Charlotte’s Web can be shipped to all 50 states without a doctor’s recommendation? But states vary on legalization of medical (smokable or liquid) marijuana. Check your state:
    http://www.cnn.com/interactive/2014/01/politics/map-marijuana/

    The Realm of Caring might have more information: http://www.theroc.us

    Regarding all cannabis, how is it possible that it’s ILLEGAL at the Federal Government level, and LEGAL at the state level? Isn’t that a contradiction? I’m guessing yes, and no.

    Our constitution is actually a very broad document with “room to breathe.” The founders wanted us to be able to evolve our laws, just as our culture was sure to evolve. Where better to “check the pulse” of the country by trying out new laws within the states?! This is part of our Federalist system.

    The Federal Government has what’s called “prosecutorial discretion” meaning the Feds can decide if they want to prosecute laws — or not. So if a particular state wants to legalize cannabis, the constitution wants the people to decide the “tone” of our nation. Sometimes the tone is more conservative, sometimes it’s more liberal. People’s views evolve.

    So even though they still consider cannabis illegal, at their discretion, the Feds are choosing NOT to prosecute cases in the states that have legalized cannabis! Federal Schedule 1 law hasn’t changed yet (it should… ASAP) but the states with legal cannabis are getting a “pass slip.” They can carry out the (legal cannabis) statutes set by the people and the various state legislatures!

    The states are laboratories of democracy

    U.S. Supreme Court Justice Louis Brandeis made this point in the case of New State Ice Co. v. Liebmann to describe how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” In other words, if the Fed looks the other way, an individual state could feasibly try something new or novel, and if it worked (or didn’t) then people in other states could observe and decide if they wanted to do something similar! Or not! Cannabis is now being tested in our state “laboratories.”

    Given the Federal H.R. 5226 hemp oil exemption, could certain states still consider Charlotte’s Web “illegal?”

    Reply
    1. Rod Kight Post author

      Thank you for your thoughtful comments on my blog page regarding the legality of CBD.

      With respect to the “Charlotte’s Web Hemp Act of 2014” it remains a bill and has not been voted into law yet. It appears to be a solid bill- at least as a step forward- and we can certainly hope and encourage our Congress members to support it. Currently, though, it is not a law.

      With respect to the issue of cannabis being Federally illegal but legal in some states, you are correct. We have a concurrent system of government. The Federal government “trumps” the states in most respects; however, the the states have the authority to write their own laws. So in Colorado, for instance, it is legal to grow and sell cannabis; however, it remains illegal from a Federal standpoint. This poses many problems and inherent contradictions. Your point about prosecution priorities is exactly on point. So long as the Feds choose not to prosecute then it’s pseudo-legal. However, that’s not sufficient. We really need Congress to legalize it at the Federal level.

      Thank you again for your comments and for reading my blog. I’ll be posting more information on hemp and hemp seeds soon and I hope that you’ll continue to read and stay engaged.

      Reply
      1. Caj Cam

        I am very interested in this topic you and Ed are touching on related to hemp oil? Have you posted about this yet?

        Thank you.

        Reply
  5. Shredder

    Great article. Here’s an update. Since this article, Congress passed this budget rider: “SEC. 763. None of the funds made available by this Act or any other Act may be used … (2) to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.” This might provide an (albeit temporary) inoculation against being prosecuted for transportation of Farm Bill – compliant CBD across state lines (assuming CBD falls within the definition of “industrial hemp,” which admittedly is questionable.) At a minimum, one could transport Farm Bill – compliant hemp across state lines and then extract the CBD. Agree?

    Reply
  6. Karen Butler

    The old school of thought is that hemp stalk extraction was cumbersome, not cost-effective, and that the stalks didn’t contain enough CBD. The actuality is that there is plenty of CBD in the stalks and CO2 extraction is the cleanest method available. I carry imported (therefore legal) CO2 extracted cannabidiol oil that is 77.7% CBD, an industry high (no pun intended). This comes from industrial hemp grown by organic methods in Europe. It’s Non-GMO Project Verified.
    For more information and a great insight on pharma and the FDA’s recent attempt to steal CBD from all of us, check out the paincbd website, the page is titled, “The FDA’s Threat To You”. It’s a literary beatdown on their two arguments, and the only way now that they can steal CBD from us is through state legislation, which doesn’t trump the Hemp Industry’s win over the DEA. Pharma and the FDA are helping state legislators write this confusing legislation in hopes that the fear generated by the wording will be enough to stop the momentum. Be smarter than them, it’s just another pathetic attempt to feed pharma’s greed machine.
    The collusion of the FDA, pharma/chemical companies, and the financial and insurance industries to keep people unhealthy is sinister. Using “Operation Choke Point”, the FDA has found a way to close CBD merchant accounts nationwide, and smaller companies that operate with integrity and are passionate about helping others are falling by the wayside. The trend in all industries is “centralization”, with just a few giant corporations — mainly profit driven — keeping the lions share of the market, and polluting their products with propylene glycol and artificial colors and sweeteners. If this trend continues, people will stay sick and get sicker.
    Want the truth about these products? Go to the Buyer’s Guide at paincbd and check out the page. Know the questions you need to ask before you buy CBD products, and if you have questions, call or email me: Karen@painbomb.com (575) 829-4461

    Reply
  7. Dom

    Thank you for your time on this matter. I’ve had cancer and do not like to get high ( funny my wife a Dr. does. I’m just a nerd but in full suppport of cannabis and it’s properties) Now removing the elament “A” from THAC makes it “fun” but I’ve already have done that. I want to know how to extract specific CBD’S and so forth. Any Ideas?

    Reply
    1. Rod Kight Post author

      Thanks for your comment, Dom. Extraction is not my area of expertise. Fortunately, there is a lot of good information on the internet and a lot of good CBD producers in the USA.

      Reply
  8. Sytze Elzinga

    I think the legality regarding CBD is well explained here from the narcotics perspective.
    However, we also have the FDA perspective. How about it being an investigate new drug (IND)?
    If you can legally grow hemp and isolate CBD from flowers, it still doesn’t mean you can sell it.
    As long as the FDA recognizes it as a medicinal substance you are making a pharmaceutical product.
    You just cannot distribute a pharmaceutical product without having FDA approval.
    It is the equivalent of me isolating Paclitaxel from the pacific Yew tree in my basement and selling it on the farmers market.
    I would love to see an article on that side of the whole CBD thing.

    Reply
    1. Rod Kight Post author

      Thank you for your comments, Sytze. You’re correct that the FDA issue is a big one. Expect a full blog post on that subject soon. In the meantime, I can say this: The FDA is responsible for protecting public health in the USA by assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, the food supply, cosmetics, and products that emit radiation. According to the FDAm medical claims cannot be made about CBD products, nor can they be marketed as dietary supplements. However, the FDA has not said that CBD products cannot be sold. They just cannot be sold with health claims or as dietary supplements.

      Reply
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    1. Rod Kight Post author

      I am happy for my blog posts to be posted on other sites; however, I do require proper attribution. Please update your website to show my authorship. Thank you.

      Reply
  11. kinjal patel

    I have my own pharmacy and a lady approached me to see if I would sell hemp based brownies, popcorns, and other candies she makes, she has all the appropriate licences and she uses city’s professional kitchen to make/store all of her products. she has a daughter with epilepsy so not sure she has licence for that or for the commercial side though. Can I sell her products at my pharmacy legally? I think its iffy but does not hurt to ask.

    Reply
    1. Rod Kight Post author

      Thank you for posting on my blog. I haven’t written a blog post on “hemp oil” for a few reasons. First of all, nowadays the term “hemp oil” is a generic catchall term for any number of cannabis-related products, including edible oil made from the hemp seed, balms and salves, and oils containing cannabinoids such as CBD and THC. Under the law, these are all treated differently. Edible hemp oils derived solely from the seed that contain only trace amounts of naturally occurring cannabinoids are uncontroversially legal. On the other end of the spectrum, hemp oils containing more than trace quantities of THC are illegal in many states and under Federal law. In between are hemp oils that contain little to no THC but which contain CBD. I have written about these products in the context of the legality of CBD and will continue to write more articles, so stay tuned!

      Reply
  12. Sam

    I think high CBD, hemp and cannabis oils should be legal everywhere.

    Actually, this is the most researched plant of all or so I hear, right?

    CBD will win, thank you!

    Sam

    Reply
  13. Ira J. Smith

    Hello Rod,

    On June 13 you stared .” According to the FDA medical claims cannot be made about CBD products, nor can they be marketed as dietary supplements. However, the FDA has not said that CBD products cannot be sold. They just cannot be sold with health claims or as dietary supplements.”

    If you had authentic CBD capsules , made with no THC , and you wanted to market them on the internet what can you call them?

    If it’s not a food supplement , what can you call it?

    Reply
    1. Rod Kight Post author

      Thank you for reading my blog and for commenting. Your question is a good one. Unfortunately, there is currently no perfect answer. I will start by saying that, without more information, I don’t know if the product you describe is legal or not. Fortunately, I don’t need to know in order to answer your question. Assuming that it is legal, you cannot market it as a “dietary supplement.” You can call it a botanical or plant extract. Please feel free to contact me directly if you have any additional questions: rod@kightlaw.com

      Reply
  14. Allan I Frankel, MD

    I am ambivalent regarding the DEA’s clarification of the illegal status of Hemp based CBD. As a physician in Ca practicing cannabis medicine for over ten years, I have often noted the medical difference between “Hemp” based CBD s True “Cannabis” derived CBD. The different of course is not the CBD. The CBD molecule is just that – a single molecule that is well defined.

    However we are often judged by the company we keep. The > 600 minor cannabinoid, terpenes, flavonoids, plant waxes, etc all make CBD or THC more effective. They help the cannabinoids get into cells. In addition, many terpenes (the smelly molecules) have direct effect on our cells. The effect of whole plant extraction is well known as the Entourage effect where all the molecules working together make a much better medicine. Hemp plants just don’t have anything close to minor cannabinoid content as cannabis. The Hemp plant is and was always meant as the fiber plant and cannabis as the medicine plant.

    It is still often claimed that hemp and cannabis are actually in the same species, but this may not end up being the same.

    So, the best thing about the DEA stopping Hemp CBD shipping is that patients will be pointed to whole plant cannabis CBD extracts.
    The worst thing is that I am sure that some patients have benefitted by Hemp CBD and now may not get any CBD.

    Reply
    1. Rod Kight Post author

      Thanks for your insightful comments, Dr. Frankel. I have read quite a bit about the “entourage effect” and am glad to hear from a medical professional that it is, indeed, more powerful than any single cannabinoid. I want good products to be available to the public, which is one of the reasons that I take the time to blog. Education is a key piece of advocacy. Keep up the good work and let me know if you ever want to talk.

      Reply
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  17. Jackson

    Thanks for this informative write-up. I have a couple questions:
    – Does the federal law apply only to CBD oils extracted from hemp or does it include any sort of CBD extract such as glycerin, ethanol, etc?
    – Would CBD extracted from cannabis also be legal or is it just hemp?
    I’m sure this varies across states. Oregon has a new CBD beer that’s legal and available on tap in several bars, which is exciting to see. http://www.coalitionbrewing.com/cbdbeer

    Reply
    1. Rod Kight Post author

      Thank you for reading and commenting on my blog. I can’t give specific legal advice on an open forum blog, but I am happy to respond generally. (Feel free to reach out to me directly if you’d like to schedule a time to talk about specific legal questions: rod@kightlaw.com.) First of all, I’m glad to see hemp and CBD beer products. I love a good beer and I’m beginning to see lots of cannabis infusions in beer and other drinks. I think this is a positive development. Secondly, as for whether Federal law applies to any sort of CBD extract, it applies to any extract containing from the cannabis plant (by which I mean cannabis generally, including hemp). Finally, as to your question about the legality of CBD from hemp vs. cannabis it is only legal at the Federal level if it comes from industrial hemp: either imported and derived from non-psychoactive hemp that is lawful in the country of origin and which contains less than trace amounts of naturally occurring THC, or domestically from industrial hemp lawfully cultivated in a state that authorizes it pursuant to the 2014 US Farm Bill. I hope this helps!

      Reply
  18. pass drug tests

    It is obvious that this specific post is probably the best I have found today. It’s also apparent the person who’s webpage this is put much work in it. Great work!

    Reply
  19. Diana

    Is the interstate sale of hemp/hemp products legal if it is not for the purposes of consumption. For example, are lotions or clothing containing hemp products legal?

    Reply
    1. Rod Kight Post author

      Thank you for reading and posting a comment on my blog, Diana. The purpose of consumption is not a factor in hemp’s legality. Rather, it is the source of the hemp that is important in making a determination as to its legal status.

      Reply
      1. Diana

        I suppose then that I am confused about the statement made by DEA spokesman, Russ Baer. He said

        “The Farm Bill did not remove industrial hemp from the list of controlled substances and, with certain limited exceptions, the requirements of the Federal Food, Drug, and Cosmetic Act and the CSA continue to apply to industrial hemp-related activities, nor did it change the requirements of the CSA that apply to the manufacture, distribution, and dispensing of drug products containing controlled substances.

        DEA cannot provide an exhaustive list of “hemp” products that are exempted from control. Nonetheless, in order to provide clarity to your question, the following are some of the more common “hemp” products that are exempted (non-controlled), provided they are not used, or intended for use, for human consumption: paper, rope, and clothing made from fiber derived from cannabis stalks, industrial solvents made with oil from cannabis seeds, and bird seed containing sterilized cannabis seed mixed with seeds from other plants (or other ingredients not derived from the cannabis plant). Personal care products (such as lotions and shampoos) made with oil from cannabis seeds are also generally exempted.”

        What does it mean then that these hemp products, which are not used for human consumption, are exempted?

        Reply
  20. Toby Blevins

    Iam a truck driver and my wife uses cbd oil for her fibromyalgia. She will be coming on the truck with me in a couple months as a passenger. I need to know if she can have it on the truck. She is not subject to dot drug testing but i dont know how it effects a passenger.

    Reply
    1. Rod Kight Post author

      Thank you for reading and commenting, Toby. I’m glad to hear that your wife is finding relief with CBD oil. Unfortunately, I cannot say with any degree of legal certainty that taking CBD on the road is lawful. If you’ve read my other posts then you know that hemp oil sourced from industrial hemp that is lawfully cultivated pursuant to a State’s industrial hemp laws that are compliant with the 2014 US Agriculture Act regarding hemp is legal in the State in which the source plant was grown. Also, based on two Federal Appropriations provisions no Federal funds can be used to prohibit transporting, processing, selling, or using lawfully cultivated hemp. So, it is defacto legal at the Federal level. However, CBD and hemp oil are illegal in several States. For this reason, your wife’s CBD oil may be illegal under State law in one or more of the States in which you travel. I’m sure that this is a frustrating answer. Unfortunately, the current state of the law regarding CBD is complex and “grey”. It will remain so until we get better guidance from Congress. Feel free to reach out to me directly if you have any additional questions: rod@kightlaw.com.

      Reply
  21. Pingback: We went to one of the largest marijuana business conferences in the world — here’s what it was like | Business Insider Singapore

  22. Pingback: We went to one of the largest marijuana business conferences in the world — here’s what it was like | Business Insider Malaysia

  23. Curious George

    Extremely helpful post!! Thank you very much for sharing your insight online. This is a tough subject to get any concrete information and I feel that I have a better understanding after reading the article and comments.

    My question however, is it legal to ship third party CBD Products within state lines? *Assuming CBD is legal in that state ie California

    Thank you for your time.

    Reply
    1. Rod Kight Post author

      Thank you for your kind comments. CBD law is confusing and “grey”. I’m glad that my post helped. With respect to your question, if CBD products are lawful in your state then they can be shipped intra-state (ie, within the state) without violating state law.

      Reply

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