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Is CBD Oil Legal? Depends on Where You Are and Who You Ask

March 22, 2017
CBD oils are increasingly popular among medical patients, athletes, and consumers looking for muscle relaxation, general therapy, and anxiety reduction. But their legal status remains utterly confusing—especially since the US Drug Enforcement Administration published a rule regarding CBD last December.

In that rule, the DEA reiterated that all cannabis extracts, including CBD, are considered Schedule I substances. The agency said the clarifying rule was needed to bring US law into conformity with United Nations treaties governing controlled substances.

The DEA considers it illegal, and yet it remains available online and in retail stores around the country.

But the clarification only served to confuse both consumers, CBD manufacturers, and retailers. And it was almost immediately challenged in court by a consortium of hemp and CBD oil producers.

More recently, the DEA issued a clarification to the clarification. It clearly stated: “Cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.”

Meanwhile, CBD laws vary from state to state, and while the DEA considers it illegal under federal law, CBD products remain available for sale in health supplement shops and organic food stores around the country—though some of them might not contain all that much CBD.

Confused enough?

We’ll try to sort through it all for you.

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CBD Week Is Here

CBD Is Legally Allowed in 44 States

Cannabidiol, or CBD, is just one of over a hundred cannabinoid compounds found in cannabis. THC is the cannabinoid most folks are after when looking for a high. In contrast, CBD is non-intoxicating. In the 28 states where medical marijuana is legal, CBD products are covered by those same medical marijuana legal protections.

In recent years, 16 states have passed CBD-only laws, which legalize the possession and use of CBD products for specific qualifying conditions—but not cannabis products containing higher levels of THC. Those CBD-only laws often limit the legal possession and use of CBD products to children with epilepsy, and some nerve and muscle afflictions.

Only six states completely outlaw CBD: Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia.

Even in those states with CBD legal protections, however, the substance is considered federally illegal by the DEA.

Only six states—Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia—still consider every part of the cannabis plant, including CBD, to be illegal.

Most states with CBD-only laws allow possession, but do not allow licensed dispensaries, home cultivation, or any other supply infrastructure. In other words, registered patients can have it and use it but can’t legally obtain it.

In Georgia, for example, the legislature passed a law in 2015 that made legal possession of up to 20 ounces of CBD for patients with qualifying conditions like seizure disorders and multiple sclerosis. The law does not, however, set up any supply infrastructure—there are no licensed dispensaries or producers. Recently, the Georgia legislature passed a compromise law that includes Alzheimer’s disease, AIDS, autism, epidermolysis bullosa, peripheral neuropathy, and Tourette’s syndrome in the list of diseases that can be treated by CBD—as long as that CBD oil has no more than 5 percent THC.

Related

Atlanta Buyers Club: Inside the CBD Underground in the American South

Alabama’s laws allow CBD possession for qualifying patients through a clinical trial program at the University of Alabama. But the state doesn’t carve out any legal protections for production or distribution.

In the six states without CBD laws or medical marijuana laws, CBD remains a drug that’s punishable, in theory, by arrest. But it seems to be an extremely low priority for most law enforcement agencies. We could find only a few instances of anyone being arrested for CBD oil sales, and no examples of arrest for simple possession.

In practice, selling CBD seems to be legally riskier than possessing it. The DEA’s priority seems mostly to concern commercial violations; most cases involved smoke shops and non-cannabis vape stores selling CBD cartridges. In 2015, police seized CBD cartridges at a vape store near Milwaukee, but the store owners were never arrested or charged. (A 2014 law made it legal for patients to possess and use CBD oil in Wisconsin, but the law did not make it legal to sell.) That same year, police in central Florida arrested the owner of a local smoke shop chain for selling CBD products. 

Related

CBD (cannabidiol): What does it do and how does it affect the brain & body?

Legal Morass

Did the DEA’s recent rule on CBD destroy the market and end all access to the compound? In a word, no.

“The sky is not falling; however, this is a very concerning move by the DEA,” attorney Bob Hoban told the Denver Post the day the rule was posted. “What it purports to do is give the DEA control of all cannabinoids as a controlled substance.”

'The DEA cannot create a statute. That can only be done by Congress.'
Bob Hoban, cannabis attorney

Hemp growers weren’t happy about the DEA’s rule. Hoban says the DEA skirted an established federal process: Only Congress can add a new substance to the Controlled Substances Act.

On Jan. 13, the Hemp Industries Association, RMH Holdings, and Centuria Natural Foods teamed up with Hoban Law Group, a Denver-based cannabis law firm, to challenge the DEA’s rule.

The Hemp Industries Association, or HIA, is a California-based international non-profit with 74 US agricultural and commercial companies as members. RMH Holdings is a Colorado hemp producer. Centuria Natural Foods launched in 2014 as a hemp food producer. Since then, the company has entered many licensing agreements, including with Hi Brands International, Inc, a subsidiary of former presidential candidate Gary Johnson’s Nevada-based company, Cannabis Sativa, Inc.

The companies challenge the method the DEA is using more than the impact.

“The DEA cannot create a statute,” Bob Hoban, the firm’s managing partner, told Leafly in an interview last month. “That can only be done by Congress.”

Opinions are divided on whether the DEA’s rule itself was legitimate. DEA officials contend that the inclusion of CBD in the Federal Register notice was almost an afterthought. According to DEA spokesperson Russ Baer, CBD has always been illegal. Cannabinoids, he told Leafly, are the controlled substances.

“The DEA’s view on what constitutes a controlled substance has never changed,” Baer said.

Related

Hold On! The DEA’s Move Against CBD May Not Be Legal

Paul Armentano, deputy director of NORML, the National Organization for the Reform of Marijuana Laws, takes an uncharacteristic stance on this issue. He sides with the DEA.

“The DEA makes it clear they don’t have to explicitly list anything as a controlled substance as long as a substance is intended for human ingestion, not approved as a drug by the (US Food and Drug Administration), or is structurally or pharmacologically similar to another controlled substance,” he told Leafly. “This DEA rulemaking change doesn’t make it any more illegal” than it previously was. The new rule “was an administrative change,” Armentano added. “It has nothing to do with law enforcement.”

Armentano pointed to several pieces of evidence as proof that CBD has always been treated as illegal at the federal level. Congress has tried and is currently trying to pass bills to remove CBD from the Controlled Substances Act—which would be unnecessary if the compound were already legal. Further, the Controlled Substances Act itself specifies that the government has the right to control substances that are chemically similar to the ones explicitly listed.

Rod Kight, a North Carolina attorney who specializes in business law and cannabis policy, has written a number of lengthy blog posts that get into the case law and legal technicalities of CBD. Those are available here, here, and here.

Related

Companies Sue DEA Over Recent CBD Rule

Can CBD Be Derived From Hemp?

The DEA’s controversial late-2016 rule sparked a conversation about the connection CBD has with hemp, the non-intoxicating form of cannabis from which many CBD manufacturers say they source their CBD.

According to DEA spokesperson Baer, a CBD product’s legality will depend on where it is sourced.

If the CBD was derived from the non-intoxicating part of the cannabis plant, 'then you’re talking a non-controlled substance.'
Russ Baer, DEA spokesperson

“If the products are derived from the non-intoxicating part of the marijuana plant,” he said, “then you’re talking a non-controlled substance.”

As a rule of thumb, this means whole hemp products that may contain CBD are legal, but CBD isolate products are not. So hempseed oil is federally legal. But hempseed oil is not legally the same thing as CBD oil.

What is hemp? Good question.

The 2014 Farm Bill legalized hemp production if it takes place for research purposes under an approved agricultural pilot program. Hemp is cannabis with less than 0.3 percent THC by dry weight, by these laws. So hemp technically may contain some THC—but in such minute amounts that it’s not considered psychoactive at all.

Related

Hemp 101: What Is Hemp, What’s It Used for, and Why Is It Illegal?

The Farm Bill of 2014 makes no mention of CBD—just hemp fiber and seeds, which a US Department of Agriculture guidance letter said must be for “exclusively for industrial purposes (fiber and seed).” Does that mean CBD derived from hemp is legal?

Possibly. But there is disagreement over whether it’s even possible to extract CBD from hemp fiber and seed.

Martin Lee, co-founder of Project CBD, told Leafly that hemp fiber and seed contain no usable amounts of cannabinoids. “Cannabidiol can’t be pressed or extracted from hempseed,” he writes. “CBD can be extracted from the flower, leaves, and, only to a very minor extent, from the stalk of the hemp plant. Hemp oil start-ups lack credibility when they say their CBD comes from hempseed and stalk.”

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Science Revisited: Will Using CBD Hemp Oil Lead to a Positive Drug Test for THC?

Is There CBD in Your CBD?

Probably. But not necessarily.

Ironically, the only four states where you can be absolutely sure that the CBD content claimed on the label is the CBD content in the bottle are Colorado, Washington, Oregon, and Alaska, where adult-use cannabis is legal and regulated. That’s because the CBD products available in licensed retail cannabis stores must pass state-mandated lab tests to assure their purity and potency. In fact, if these products haven’t gone through state testing, they’re liable to be seized, as happened recently in Alaska.

In adult-use cannabis states, all CBD products are tested for purity and potency.

Outside of those four states, consumers must put their trust in the manufacturer. Sometimes that’s warranted, and sometimes it’s not. In 2016 and 2016, the FDA ran tests on several CBD products and found that many of the products had far less CBD than advertised, and in some cases none at all. You can find those test results here for 2015, and here for 2016. (These FDA tests were done as a one-off project. CBD products are not approved by the FDA for the prevention, mitigation, or treatment of any disease or condition.)

CBDRx markets itself as a premier source of CBD-rich hemp products, and it agrees with Martin Lee to a point. Industrial-grade hemp imported from Europe or Canada might not contain enough cannabinoids to be effective, but CBDRx’s specifically engineered hemp strains do, company representatives said.

CEO Tim Gordon did agree with NORML’s Armentano that the DEA’s rule was largely administrative, and had nothing to do with enforcement.

CBDRx extracts its product from hemp flower, not from the industrial stalks and seeds.  Company officials say CBDRx grows specially engineered hemp with high CBD concentrations, and is cultivated differently than conventional industrial hemp.

Still on the Shelves, Mostly

Several CBD manufacturers would not speak on the record for fear of inviting federal retaliation, but said they’ve recently had trouble selling their products to non-cannabis retail stores. In January, the Seattle Central Co-op pulled CBD products from its shelves in reaction to the DEA rule. Meanwhile, CBD remains available online and at many retail health stores across the nation.

While some are having trouble, others say the fracas around CBD and hemp has backfired on the DEA. CBDRx’s director of sales, Preston Whitfield, said his company has actually seen an increase in CBD interest everywhere but Texas.

Still, he also said he expects the confusion to cause some CBD or hemp producers to be more careful about how they market their products.

“There is a distinct uptick right,” Whitfield said. “We’re seeing different whole industries coming and seeing it serves a specific interest and end.”

Sports are part of the new big draw, he said. “We’re seeing lots of interest from the professional sports industry, full contact sports, mixed martial arts, athletes wanting to prepare.”

DJ Summers's Bio Image

DJ Summers

DJ Summers is a journalist and the author of The Business of Cannabis, set to publish in spring of 2018. Follow him on Twitter @djsummers87 or email him at djsummers100@gmail.com.

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  • TerryLicia

    Cultivating hemp is illegal in the US; importing hemp and hemp products, including hemp oil, rich in CBD, is not. How bloody hard is that to know? Why is Leafly allowing the publication of such contrarian articles? Lust for the fortunes that deputy editor, Barcott, is still chasing? DEA’s Rosenberg rule is just a rule … the 9th Circuit Court blasted them in the 2001 case and PERMANENTLY ENJOINED the DEA from making law. They can write all the rules they want, but they cannot make law. That is the job of Congress, and so far, Congress has not made a damn ruling about ANYTHING … but hang in there!

    • Jim McCoy

      Since 2014 Cultivating Hemp is now legal in the US. Check with your states ag department
      ent to see what guidelines you must follow.

      • TerryLicia

        Thank you! I wasn’t aware of that, always heard it was still outlawed. Sure don’t see much of it although I read below that “thousands of acres” are grown. It’s not much but it’s a start!

    • Auryan

      Yeah you are incorrect. Hemp cultivation is covered in the 2015 Farm Act. And is regulated by a states Dept. of Agriculture. Farmers can get licenses in states that have adopted the guidelines. There are currently in the Summer of 2017 thousands of acres of Federally LEGAL Hemp being grown across the country. Here is a link so you can read all about it… http://nationalhempassociation.org/

      • TerryLicia

        GREAT to know! All my life I was told stories about how my grandfather and his father grew hemp, even paid their taxes with it but that it went the way of the dodo bird. Now, it’s back! Thanks for the link, and info!

  • Andrew tackor

    Yes but CBD is not illegal.It can be used as alternative remedies for chronic pain, anxiety, and other life-impairing medical concerns.At cbdoilempire[dot]com, Enter CBD Oil, offering the best selection of the top hemp derived CBD products all in one place.

    • Debbie Carrico-Troyer

      It’s illegal in Oklahoma. So, if I order online will I get in trouble?

      • Tasha

        CBD Oil is legal in the state of Oklahoma.

        On Apr. 30, 2015, Oklahoma Governor Mary Fallin signed HB 2154, which allows the use of cannabis oil that is no more than 0.3% THC for the treatment of severe forms of epilepsy. He stated at the signing:

        “This bill will help get sick children potentially life-changing medicine. By crafting the legislation in a way that allows for tightly controlled medical studies, we can ensure we are researching possible treatments in a responsible and scientific way. The CBD oil we are studying is a non-intoxicating derivative of marijuana. It is not marijuana, and it is not anything that can make you ‘high.’ This law has been narrowly crafted to support highly supervised medical trials for children with debilitating seizures. It is not a first step towards legalizing marijuana, and I will never support the legalization of marijuana in Oklahoma.”

    • D. Cannaboom

      Correct! using it for anxiety and depression. 100% works. This should not be a problem!!!!!

    • Sandy Halliburton

      as far as i know right now, processing the hemp flowers for CBD oil is still illegal. hemp processing is only legal for industrial uses, stalks and seeds (fiber and hemp oil). and the stalks and seeds of the hemp plant have so little CBD in them as to be useless. as for the CBDs from cannabis, it is only legal in states that have legal marijuana.

  • AntiSJW_Warrior

    This is why the legitimate Hemp extract companies have stopped marketing CBD content though they will tell you what it is if you ask. They only mention the amount of Hemp on their labels.
    Those companies that did not have any CBD in their oil were victims of their own carelessness. They gambled on cheap and crapped out. They went with importing hemp from who knows where grown using unknown chemicals. To add to this the CBD companies only tested once or twice a year if they didn’t lie. In guess you can only so much from a garage.

    • TerryLicia

      Truly! I found out through import/export contacts that I could actually buy CBD not only in 55-gallon drums but in those massive containers like gas comes in .. just for a few thousand bucks!! I knew right then, if I had the money, I’d be ripping off the suckers there by the thousands – but I didn’t have the money, and probably .. maybe … wouldn’t REALLY want to do that! LOL Frankly, I cannot blame the sellers anymore. PT Barnum said it best, “There’s a sucker born every minute.” And if we suckers don’t wise the hell up, we almost deserve to have our money taken from our pockets.

      • vagabondo

        Very good point

  • The fatty acids contained in CBD hemp oil have an important vasodilation property and so clots are prevented from developing within the blood vessels. This is how another beneficial feature is added to this oil and it deals with supporting the skin’s layers to develop cellulitis. So why not give CBD hemp oil a try? You might find a perfect health ally in it. https://hlbenefits.com/cbd-pure-reviews/

  • Christopher Vaughn

    After ignoring the CBD oil on the shelves of health food stores for months; the state excise police in Indiana began raiding stores recently for CBD oil. According to the State Excise Police, CBD is considered the same as marijuana in the state of Indiana. Even thought that makes zero sense since it does not have any psychoactive chemicals in it at all (or so little as to not count). Thus it is idiocy but must be coming from the top as the Governor is the head cheese they would not be raiding unless he had given the OK. So it is stupid and a waste of taxpayer money. Hitting the health food stores hard; and people will just pay a little more to order it online. CBD oil works for a variety of health conditions. It is big pharma that is trying to keep it off the shelves. But in the end they will lose this one.

  • simas333

    People!!! I have been buying my CBD oil from http://verifiedcbdoil.com for years and I love their stuff but I am really tired of they are being out of stock most of the time… any tips for another supplier? Thank you and God bless you all <3

  • Yaz Khusro

    Curious…hypothetically speaking, if I am a legal medical grower, can I legally give/donate high cbd% weed away to an over 21yrs adult with parkinsons? Or maybe donate it free of charge to be processed into cbd oil for their use?

    • Yaz Khusro

      Oh – in Washington state. Spokane county if it matters

    • TerryLicia

      You could do that in Alaska … if you were not licensed, by the same laws in place from 1976. But if you wanted to be licensed to grow, via the State, you could not in Alaska. NO giveaways if you are a licensed anything! They have to tax it, you know. Sigh.

  • Danilo Zanetti

    The situation isn’t much better in the UK; there are so many legal grey areas surrounding cannabis in hemp and CBD form that nobody knows the full extent of the law today. CBD oil is completely legal in the UK, but there is apparent illegality surrounding the possession of hemp flowers. This article is a good read for looking at cannabis laws (including hemp and CBD) in the UK

  • Jubileez

    The worldwide media coverage of the issue of whether the CBD and it’s oil should be legalized or not has been quite interesting. This is no doubt a very touchy topic. I can’t help but imagine where one draws the line between a legitimate medical use and sheer abuse on the part of those who use it for recreational purposes. Thanks

    • alicat2441

      The majority of CBD oil that is being sold does not have THC or soo little that it doesn’t give you a high. You really can’t abuse CBD oil recreationally. You don’t get the high.

    • Sandy Halliburton

      people don’t use CBD for recreational use. it has little to no THC so has no psychoactive properties. many CBD products processed from hemp also do not have enough CBD to affect any medical disorders either. they are just jumping on the trendy CBD bandwagon, like many other so-called “nutritional supplements”. so it is very difficult to find and trust the CBD processed form hemp. useful CBD from hemp can only be processed from the flowers, which is still illegal, even though no THC. the only legal use of hemp in the states is for “industrial” use, only the stalks and seeds (fiber and oil). the stalks and seeds of hemp are so lacking in usable CBD that it is not legitimate for medical use.

  • chris

    After a month of researching legalities of CBD industry here in Colorado, I must say I’m still confused. I went to city authorities and at one point was told I needed a $50,000 permit, ya no! So went to the state level with Dept of Ag, my intent was to make cbd infused dog treats with proper dosage. NOPE can’t do that it’s illegal, so I said I’m going to keep calling until you say yes to something. Decided I would make cbd infused creams etc. I was told yes it was legal but don’t ship across state lines. Hmmm ok. Do you have to be 21 to purchase? No! Well needless to say I made product, set up website and carried on, I’m two weeks into it and SQuare credit card has cut me off! I’m am totally confused as to what I can and can’t do as I tried to follow all the laws etc. I would so appreciate any input you have on this!

    • Crystal Shook Gonzales

      Since it is federally illegal banks and the different card processing servers will not deal with “federally Illegal activities”. If you look at the fine print for Square they also do not allow the user to conduct sales of ammo, firearms or any gun parts. You have to set things up for cash transactions or figure out how to list your “product” so that it is legal to run credit card transactions with. Also PayPal or Pay anywhere are great companies to accept credit cards. Pay Anywhere also was giving out a free card reader that allowed you to use the chip or swipe where others were charging for a chip reader (granted it is bluetooth for a mobile reader).

  • Katelyn Lockwood

    How to sensibly buy LEGAL cbd oil? Because I got a letter saying customs has confiscated my package two times already and I’m pissed.

    • In the US, CBD is seen as a controlled substance at a federal level, so assuming you’re importing to the US, you’ll potentially have troubles importing until the scheduling is dropped.

  • Nathalie Burnett

    CBD oil is exploding with new products every week. Who should I trust and what should you buy?

  • Rob Ready

    I was arrested and charged with a FELONY in Saratoga, WY on Sept 2017 for possession of CBD hemp oil ‘THC liquid’ by a banjo playing member of the Hitler youth named Robert The Bifano. The state’s crime lab found a “presence” of THC and even violated state statutes by weighing the glass bottle! Due to atrocious legal counsel–Steven Titus of Gillette, WY whom I found on the NORML site–out of duress from threats to my physical safety while incarcerated and Titus warning that I couldn’t “trust” twelve “moronic motherfu@#%s in Carbon County” in a jury trial and that “You’ll go to prison,” I accepted a terrible alford plea that turned me into a felon for life under 3 years of supervised probation. I was also charged with a second bogus felony for good measure. Stay out of Wyoming folks–the state where Matthew Shepard was beaten to death and strung up on a fence and left to die like a dog by two Neanderthals– especially steer clear of the towns of Rawlins and Saratoga and along Interstate 80—-the ‘ju$tice’ sy$tem in Carbon County is corrupt. “Vacation in Wyoming–Leave on Probation.”

    • Crystal Shook Gonzales

      Crazy thing is that there are some stores that are actually selling CBD oil for vapes and ingestion and they are not paying attention that it actually states on the back of the package “contains <3% THC" (which is illegal in WY). But you are correct there are lots of places in WY that throw the book at you for petty little shit and let the harder criminals off with a slap on the wrist. Sucks

    • John Mueller

      No way!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

      • Rob Ready

        Way, John. It’s amazing how life can be running along great one day, you’re bothering no one, loving others, minding your own business, enjoying your work and then one crooked cop can railroad you. This cop who screwed me over–Robert Bifano– failed to arrest a suicidal AWOL soldier a few years ago and the guy went on to kill his wife and then shot himself. Bifano got sued for his ineptitude.

  • Adam

    Really nice article, thanks for sharing it with us. I’ve also found this article useful if you’re just starting with CBD oil – hope you guys will like it! God bless all.