Is hemp based CBD oil legal? A question that sounds so simple is clouded in grey. Depending on who you talk to and what you read, you will receive different answers to this question.
This confusion all stems from different interpretations of the definition of marijuana in the Controlled Substances Act, the law in the U.S. that serves to schedule substances such as THC.
In fact, currently there is a battle raging in the 9th U.S. Circuit Court of Appeals between the DEA and Denver’s Hoban Law Group on the behalf of Hemp Industries Association, Centuria Natural Foods, and RMH Holdings LLC to further clarify this matter.
So why is this question so convoluted, and what does this mean for consumers and businesses? In this article we will explain the laws that pertain to this question, where the legal status stands now, and what may come in the future.
To fully understand why this seemingly simple question is so hotly debated, first one must understand what exactly hemp is and what products are made from it.
Marijuana and hemp are the same genus and species of the plant Cannabis sativa L. The psychoactive component of cannabis, tetrahydrocannabinol (THC), is derived from the flowering tops and leaves of the plant, while hemp products are derived mainly from the stalk. This part of the plant is not psychoactive, containing low levels of THC and high levels of cannabidiol (CBD).
Breeders of the Cannabis sativa plant have bred for either marijuana properties or hemp properties, leading to marijuana plants producing more buds with higher THC and hemp plants strong fiber and smaller buds with much less THC content.
By law, hemp must contain very small quantities of THC, the definition of which varies from one state to the next. Generally, hemp plants must contain less than 0.3 or 0.5 percent THC content of the dry weight. Once a plant exceeds this percentage, it is considered marijuana.
While this is true at the state level, federal law complicates matters. Federal law considers any product that contains even a very small amount of THC to be marijuana, and is thus illegal under federal law.
Hemp plants are used to make much more than CBD oil, including bio-plastics used in automobiles, hemp seeds, rope, and hemp seed butter, to name a few. According to Westword, as of November 2016, there were nearly 400 active industrial hemp businesses registered with the Colorado Department of Agriculture in Colorado alone!
With so many businesses relying on the cultivation and sale of hemp products, the legality of hemp presently and in the future is of critical importance to the livelihoods of countless people.
Even more people than are involved in the production and distribution of hemp products have started to depend on CBD oil derived from hemp to help alleviate symptoms caused by a wide variety of medical conditions.
Paige Figi is a mother to a daughter suffering from seizures caused by Dravet syndrome. She reports that her daughter’s seizures were drastically reduced once she began administering CBD oil to her daughter.
Other individuals and numerous peer-reviewed scientific studies have found CBD oil to relieve symptoms associated with chronic pain, arthritis, headaches, anxiety, stress, depression, digestive disorders, and a number of other conditions.
With legality unclear, Figi, business owners, and countless others are left to worry about this powerful extract being taken away from them, moving from a grey area to explicitly illegal.
While there have been no changes in federal law, a rule finalized by the DEA earlier this year has ignited a backlash from the CBD industry and supporters.
In January 2017, the DEA finalized a rule titled the “Establishment of New Drug Code for Marijuana Extract.” This drug code established a new code number for cannabis-derived extracts, essentially confirming their stance that CBD oil, under federal law, is illegal.
But why then has the CBD oil industry taken off?
This has to do with alternative interpretations of the definition of marijuana in the Controlled Substances Act (CSA), along with the increasing legality of medical and recreational marijuana at a state level. This legality in certain states has led to a wider variety of products gaining popularity.
In the Controlled Substances Act (CSA), marijuana is defined as:
“All parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. 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.”
This definition has been the basis for many hemp companies to claim that CBD oil would not fall under the definition, as CBD comes from the mature stalks and seeds of the hemp plant, but over the last year, the DEA has made it very clear that it considers CBD oil to be illegal in all circumstances.
DEA officials believe that, based on scientific literature, “it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana.”
Hence the DEA does not believe that it is feasible for CBD oil to be extracted from the parts of the Cannabis plant which are excluded from the CSA’s definition of marijuana, leaving the possible conclusion that CBD oil is in fact being extracted from marijuana and not hemp plants.
Further, the DEA noted that:
“Nor would such a product be included under drug code 7370 (tetrahydrocannabinols). See Hemp Industries Association v. DEA, 357 F.3d 1012 (9th Cir. 2004) (Hemp II). However, as the Ninth Circuit stated in Hemp II, “when Congress excluded from the definition of marijuana ‘mature stalks of such plant, fiber…,[and] oil or cake made from the seeds,’ it also made an exception to the exception, and included ‘resin extracted from’ the excepted parts of the plant in the definition of marijuana, despite the stalks and seed exception.” Id. at 1018. Thus, if an extract of cannabinoids were produced using extracted resin from any part of the cannabis plant (including the parts excluded from the CSA definition of marijuana), such an extract would be included in the CSA definition of marijuana.”
Per this explanation, the DEA makes it clear that, CBD oil being produced using extracted resin, their interpretation is that CBD oil is federally illegal regardless of how it is produced.
The hemp industry lawyers argue that the DEA does not have the authority to schedule cannabinoids, and that this drug code treats these products as controlled substances.
According to the DEA, they did not change the schedule status of CBD, but rather that CBD oil and other hemp and marijuana derivatives “have been and will continue to be Schedule 1 controlled substances.”
But what about in states where recreational and medical marijuana are legal?
Laws pertaining to hemp and CBD oil specifically vary from one state to the next, but, according to the DEA, is still illegal under federal law. Many companies and proponents of hemp do not agree with this viewpoint.
Amidst this confusion, the majority of production and sale of hemp continues on without interruption, however there have been instances of enforcement.
In Texas and Kentucky, companies have had police seize their CBD products. In New York, a patient who was recommended CBD from their physician was denied the oil by the state-run special care facility as officials there stated that federal law prohibited them from doing so – this in a state where medical marijuana is legal.
According to the DEA, CBD oil is illegal federally, and with courts largely affording the DEA latitude in controlling these substances, their stance isn’t something to take lightly.
There are court cases that have ruled in favor of both sides, with the finding of Hemp Industries Association v. DEA ruling that non-psychoactive hemp is not a controlled substance. However, judges in other court cases have ruled the opposite.
There is no way to remove this concern for the hemp industry and supporters besides changing laws and passing bills.
So what action is being taken?
Immediately following the DEA’s drug code for marijuana extracts, a Colorado-based law firm representing a Hemp Industries Association (HIA), Centuria National Foods Inc. and R.M.H. Holdings Inc. filed a complaint in the 9th Circuit U.S. Court of Appeals.
There are also, as of September 29, 2017, six marijuana reform bills that could have an impact on the federal government’s control over the hemp and marijuana industry. None of these bills are yet set for vote, however they represent the fight for legality, as well as how far from completely legal hemp and CBD oil are.
Some states, such as Colorado, are clarifying their stance in a hope to support hemp industries and use in their individual states.
In July 2017, the CDPHE (Colorado Department of Health and Environment) issued a policy helping to clear up the use of hemp-derived products in the state of Colorado. It states that all parts of the industrial hemp plant are permitted to be used as food ingredients in the state of Colorado.
This policy allows the CDPHE to instate several requirements of manufacturers that will help to regulate the hemp products released. Not only will this give companies operating in Colorado some comfort, but it will also provide regulation and thus improved safety for the consumer.
According to Leafly, as of March 2017, there are 6 states that completely outlaw CBD: Idaho, Indiana, Kansas, Nebraska, South Dakota, and West Virginia.
Many states have CBD-only laws that allow registered patients to possess CBD oil, however there is often no legal way of obtaining it. This is because the laws to not allow licensed dispensaries or other ways of growing, manufacturing, or producing CBD oil. These laws mean that those who do not qualify would not legally be allowed to possess CBD.
These CBD-only laws and their details can vary from state-to-state, and these laws are changing with regularity, so before purchasing CBD oil it is best to research the current status of CBD in your state.
The remaining 44 states legally allow CBD in one way or another, with some allowing it for everyone, and others requiring patients to qualify and register.
In states where medical or recreational marijuana are legal, these rules also cover products containing CBD. As of October 13, 2017, 29 states have passed laws allowing medical marijuana use.
As of September 14, 2017, 8 of the states allowing medical marijuana also allow recreational marijuana: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington.
In the states that are fully CBD friendly, purchasing CBD products is simple, however it is illegal to mail to transport them over state lines because of the blanket stance by the DEA that CBD oil is illegal under federal law.
While enforcement has to date been lax, this is not something to ignore. Check into the specific laws for your state, and do not transfer these products over state lines.
1. Marijuana vs. Hemp: What’s the Difference?
2. Sessions targets pot, but six bills could keep the industry rolling
3. With DEA digging in its heels on “marijuana extracts,” legality of CBD oil on trial in federal courts
4. Colorado health officials to regulate CBD Foods, Fill Gap in FDA Oversight
5. DEA guidance is clear: Cannabidiol is illegal and always has been
6. Is it legal to mail CBD oil?
7. 18 states with laws specifically about legal cannabidiol (CBD)
8. Is CBD oil legal? Depends on where you are and who you ask
9. 29 legal medical marijuana states and DC
10. State marijuana laws in 2017 map
11. How advocates are inspiring members of Congress to champion national CBD oil legalization