Currently, CBD is rising in popularity, and the industry is booming. Many people are buying it without even bothering to question its legal status, assuming that because it’s for sale, it must be legal. Additionally, recent legislation has led people to believe that it is 100% legal to purchase and use CBD.

However, the answer to the question “is CBD legal?” is complicated.

This article will explain the legality behind the cannabinoid so you can make an informed decision regarding your purchase and use of CBD products.

IS CBD LEGAL WHERE YOU LIVE?

In short, whether CBD is legal or not depends on what it is sourced from. It is possible to extract CBD from either hemp plants or marijuana plants, both of which are technically cannabis plants. Confusingly, marijuana is a type of hemp plant, so all marijuana is hemp, but not all hemp is marijuana.

CBD from hemp is extracted from the stalks, leaves, and flowers – in general, the upper parts of the plant – and contains no more than 0.3% THC. This is legal in all 50 states in the US in accordance with the 2018 Farm Bill.

CBD from marijuana, on the other hand, contains higher THC levels (usually between 5% and 35%, as opposed to 0.3%). According to the 2018 Farm Bill, plants that are used to produce CBD containing more than 0.3% THC are considered marijuana plants, which are illegal under federal law.

In recent years, many states have legalized medical marijuana, with a few even legalizing recreational marijuana use. Some have decriminalized it across the whole state, while others have only decriminalized it in certain cities. Included below is the full list of states that have legalized marijuana for either medical or recreational use.

However, it is critical to remember that, although some states have legalized marijuana, it is still illegal under federal law. Additionally, the medical marijuana laws and regulations vary from state to state, with some remaining extremely strict.

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States That Have Legalized Medical Marijuana:

  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Utah
  • Vermont
  • Washington
  • West Virginia
  • Although it is a federal district rather than a state, Washington D.C. has also legalized medical marijuana.

States That Have Legalized Recreational Marijuana Use:

  • Alaska
  • California
  • Colorado
  • Maine
  • Massachusetts
  • Michigan
  • Nevada
  • Oregon
  • Vermont
  • Washington
  • Again, although it is a federal district rather than a state, Washington D.C. has also legalized recreational marijuana.
  • Additionally, at the time of writing, Illinois has just legalized recreational marijuana, which is set to go live in January 2020.

Even if marijuana is legal in your state, either medically or recreationally, you can’t necessarily just go and buy CBD extracted from marijuana – sometimes, you may be required to register with the state government or get a doctor’s recommendation.

This will often lead to a medical marijuana card being issued. Additionally, some states in which marijuana is illegal, recognize out-of-state medical marijuana patients who have the correct documentation. Consequently, you should familiarize yourself with the differing laws between states when appropriate.

Therefore, the answer to the question, “Is CBD legal?” depends on whether or not it is extracted from hemp or marijuana. Marijuana is explicitly banned under federal law, regardless of legislation in individual states. In contrast, the laws regarding CBD extracted from hemp have yet to be clarified.

DIFFERENCES BETWEEN CBD AND THC

Cannabinoids are chemical compounds that are naturally present in cannabis plants. Scientists have identified over 100 different cannabinoids, but the two best-known are THC and CBD.

Both CBD and THC are made up of the same atoms; however, the atoms are arranged differently, making the chemical composition of the two cannabinoids different. This also makes them have different effects on our bodies.

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THC is psychoactive, while CBD isn’t.

As a result, THC causes the “high” that is commonly associated with marijuana use, whereas CBD will not cause any euphoric effects, no matter how much is consumed. Both cannabinoids react with the endocannabinoid system, which is a complex system of receptors found in the human body. CB1 receptors are primarily found in the central nervous system, while CB2 receptors are more common in the peripheral nervous system. CB1 receptors affect the brain, spinal cord, and nerves, while CB2 receptors affect the rest of the body. THC binds primarily to CB1 receptors, while CBD binds mainly to CB2 receptors.

THC produces a high different than that produced by opioids. It doesn’t affect the brain stem, so it won’t slow your breathing or heart rate. However, its psychoactive effects cannot be felt when it is taken in very small quantities, which is why it is legal to purchase and use CBD extracted from hemp, as the THC level is no more than 0.3%. However, if a CBD product contains more than 0.3% THC, then it’s likely made from marijuana and is not legal throughout all 50 states.

STAYING LEGAL: THE 2018 FARM BILL

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There are many misconceptions about the 2018 Farm Bill, which this section will aim to clarify. Previous to it being passed, hemp was illegal to grow and manufacturer in the US as it was closely associated with marijuana, considering it is technically a cannabis plant.

However, the Federal Government’s 2018 Farm Bill differentiates hemp from other cannabis plants and allows for its legal cultivation across all 50 states in the US.

It is, therefore, also legal to sell, possess, and transport hemp-based products, as long as they contain no more than 0.3% THC. Hemp-based products that contain more than 0.3% THC are considered to be marijuana products and are, therefore, still illegal under federal law.

The Farm Bill outlined a system where both the Federal Government and individual state governments work together in regard to hemp regulations and production. However, this has caused confusion.

Some states have established plans (under the complex system laid out in the Farm Bill) devised by the state’s Department of Agriculture, chief law enforcement officer, and governor. If the plan is approved by the United States Department of Agriculture (USDA), state-wide licensing and regulation can commence. In the case of states that haven’t devised a plan, hemp farmers need to get a federal license and adhere to federal, rather than state, regulations.

Another misconception is that the 2018 Farm Bill has legalized CBD completely. This isn’t true. While hemp-based products have been removed from the Schedule I list of the Controlled Substances Act, the Federal Government and the Drug Enforcement Agency (DEA) still consider CBD a Schedule I drug. Unfortunately, it’s a legal gray area that no one has quite figured out yet.

CBD AND DRUG TESTS

There is an increasing number of cases of people – even famous professional athletes – failing drug tests after consuming CBD due to THC being found in their systems.

It’s completely understandable to be confused as to why this happens and want to know how to avoid it. Here are a few reasons you could fail a drug test because of the level of THC in your system:

1) Accidentally Using a Product Containing THC

Many people don’t realize that there is a difference between a CBD isolate and full-spectrum CBD. The difference is that a CBD isolate, as the name suggests, is pure CBD, while full-spectrum CBD also contains the other cannabinoids, including THC. Even if it’s only a trace amount (0.3% or less), there’s still a chance it could show up on a drug test.

2) Mislabeled Products

Hemp-derived CBD is supposed to contain no more than 0.3% THC, but, as a result of CBD’s rapidly rising popularity, it’s not uncommon for a company to mislabel their product purposefully in order to make a quick buck. Shockingly, 70% of CBD products purchased online are mislabeled. The reason for this is that CBD is not regulated by the US Food and Drug Administration (FDA).

3) Cross-Contamination

If you purchase CBD from a dispensary where medical or recreational marijuana is legal, there’s a chance that it has been cross-contaminated, resulting in higher THC levels than intended or advertised. It’s fairly easy for this to occur, and even the slightest contamination can be enough to result in a failed drug test.

4) Metabolization of CBD

Some sources have reported that, in rare cases, CBD can break down into THC in the stomach, resulting in a false positive drug test. However, others dispute this. Therefore, while it may be possible, it’s very unlikely.

5) Usage Adds Up

If you use CBD sparsely, this probably won’t apply to you. Heavy use, on the other hand, does add up. If you consume 1000 mg of CBD per day, it is important to consider that you are also consuming 3 mg of THC per day.

THE HISTORY OF CBD AND ITS LEGISLATION

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Cannabis has been used for medicinal purposes for centuries. The first known documentation of cannabis being used to treat medical conditions was all the way back in 2727 B.C. when Emperor Sheng Nung of China drank a tea infused with cannabis to treat malaria, rheumatism, and gout, as well as to help with memory problems. Legendary Chinese doctor Hua Tuo used mafeisan, an anesthetic made from wine and cannabis, to anesthetize patients during the implementation of laparotomy in the earliest application of general anesthesia for surgery in recorded history.

Additionally, Queen Victoria of Great Britain was fond of cannabis tinctures to treat her menstrual cramps.

CBD’s history, conversely, didn’t really start until the 1940s, when cannabinoids were first discovered by British chemist Robert S. Cahn. Two years later, Roger Adams, an American scientist, isolated and identified CBD, then later discovered THC.

For decades, scientists didn’t know much about the chemical composition of these two substances, but, in 1963, Dr. Raphael Mechoulam successfully identified the stereochemistry of CBD, meaning that he learned how its molecules were arranged and how this arrangement affected CBD’s chemical reactions. In 1964, he discovered the stereochemistry of THC. This was a revolutionary, groundbreaking discovery because it proved that CBD wasn’t responsible for the psychoactive effects of cannabis.

The history of cannabis legislation in the US is long and complex. Cannabis was first put into the US Pharmacopeia in 1850 and, until 1937, it was used medically for a wide range of ailments. In 1937, however, the Federal Government restricted the use and sale of cannabis with the Marihuana Tax Act. It was subsequently removed from the US Pharmacopeia in 1942. The penalties for possession were increased with the 1951 Boggs Act and in 1956 with the Narcotic Control Act. During the 1950s, CBD was also outlawed in all 50 states. Prohibition was later enforced under penalty of federal law with the Controlled Substances Act in 1970. However, in 1978, New Mexico passed the 1978 Controlled Substances Therapeutic Research Act, stating that cannabis had medicinal value.

During the 1980s, Dr. Raphael Mechoulam, the man who identified the stereochemistry of CBD and THC, conducted another study that didn’t attract quite as much attention. It was focused on studying the effects of CBD on epilepsy.

Eight subjects were given a 300 mg dose of CBD daily and, after four months, half stopped having seizures entirely. However, due to the stigma surrounding cannabis use at the time, the results of this study were not publicized.

Attitudes regarding cannabis use started changing around a decade later. California passed Proposition 215 – which is also known as the Compassionate Use Act – in 1996, making it the first state to introduce measures to legalize medical marijuana. Seven other states followed suit soon after: Oregon, Washington, Alaska, Maine, Hawaii, Colorado, and Nevada all legalized medical marijuana by 2000. Currently, there are 33 states in which it is legal to use marijuana for medicinal purposes.

In 2018, the Farm Bill made industrial hemp production and the extraction of hemp CBD legal, which attracted a lot of attention. In the same year, the FDA approved a CBD-based drug called Epidolex, which was the first of its kind. It is an oral solution that treats seizures associated with Dravet syndrome and Lennox-Gastaut syndrome (LGS). These disorders generally do not respond well to pharmaceutical drugs and treatments, but Epidolex has, so far, helped many people – and because of its FDA approval, it even qualifies to be covered by insurance.

MEDICAL VS. RECREATIONAL MARIJUANA

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One of the main differences between medical and recreational marijuana is the intention behind the marijuana use.

Medicinal marijuana is used to treat medical conditions such as chronic pain, chemotherapy-related nausea, glaucoma, and neurological disorders such as epilepsy and Alzheimer’s disease. Recreational marijuana use, on the other hand, is similar to alcohol or nicotine use – the goal is often to alter one’s mood and provide enjoyment. However, a person who uses marijuana recreationally can still also use it medically.

The purchasing process at dispensaries is also different for medicinal and recreational marijuana. Patients seeking medicinal marijuana are required to present both their medical marijuana card or relevant documentation and their identification.

Some dispensaries have waiting rooms for patients, who are called in one at a time, just like a doctor’s office. “Budtenders” at medical dispensaries are permitted and qualified to give medical advice and answer questions, which they aren’t allowed to do at a recreational dispensary. Medical marijuana patients also enjoy certain perks that recreational users don’t, such as lower costs and fewer taxes on products, lower restrictions on the THC content of the product and the quantity of the product bought, the ability to grow more of their own cannabis than recreational users, and access to treatment for minors.

The legality of medicinal marijuana use and recreational use differs drastically. Medical marijuana patients must have a qualifying condition in order to qualify for it legally, while recreational users don’t. Also, 33 states have legalized marijuana for medicinal use, along with several outlying US territories and districts. However, only a few have legalized recreational marijuana use.

CBD-RELATED LAWSUITS AND DEFINITIONS

The lawsuits and legal definitions that have been documented so far can also help in determining whether CBD is legal or not. In 2004, the hemp industry as a whole brought a case against the Drug Enforcement Administration (DEA) in Hemp Industries Association vs. DEA. This case is important because it paved the way for the 2018 Farm Bill. The court ruled that both marijuana and forms of synthetic THC were illegal, according to the Controlled Substances Act, but that hemp isn’t either.

However, the Farm Bill only legalized hemp CBD, and only if it meets certain conditions, such as containing no more than 0.3% THC. It’s also worth noting that CBD products are not regulated by the FDA because they haven’t been approved as a drug to treat medical conditions.

These stipulations and definitions bring us to our next lawsuit. A truck driver named Douglas Horn is in the process of suing a CBD company – Dixie Botanicals – over the mislabeling of its supposed hemp-based CBD oil, Dixie X, which the company claimed contained “0.00% THC.” Not only did it contain THC, it far exceeded the 0.3% legal limit. As a result, Horn was fired from his job of 10 years. Therefore, he is currently suing for fraudulent inducement and Racketeer Influenced Corrupt Organization (RICO) Act violations. A federal judge in New York has allowed him to proceed with the claims.

WHAT IS A SCHEDULE I SUBSTANCE?

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Cannabis, and therefore CBD, is considered a Schedule I substance under federal law, regardless of the 2018 Farm Bill.

This is defined as a substance that is not accepted as a medical treatment for any condition, has been determined to have a very high potential for abuse, and cannot be used safely, even with medical supervision. Other Schedule I substances include heroin, ecstasy, and LSD. Under federal law, a prescription cannot be written for a Schedule I substance.

Due to the legal gray area created by the Farm Bill, law enforcement officers operating at a local level are not likely to arrest you for possession of CBD, but federal officers might in certain circumstances. For example, taking CBD to an airport isn’t a good idea. Federal authorities at an airport in Dallas have not only reported skyrocketing rates of CBD interception, but some people have also been arrested on felony charges.

Griffen Thorne, a Los Angeles-based lawyer who specializes in the legality of cannabis, told The Atlantic that federal authorities are more likely to charge people than local authorities and that until the laws are clearly defined, people will continue to get arrested for possession of CBD, even though it’s not definitively illegal.

CONCLUSION: IS CBD LEGAL?

The answer is, “it depends.” If the CBD was extracted from marijuana or contains more than 0.3% THC, it’s not legal on a federal level even if it’s legal in the state you’re in.

If your state allows for the use of medicinal marijuana, research the specific laws and regulations before deciding if it’s worth the gamble or not. An increasing number of people are deciding that it is, which is why more states are legalizing marijuana for both medicinal use and recreational use.

According to the 2018 Farm Bill, if the CBD was extracted from industrial hemp and contains less than 0.3% THC, it’s technically legal. Until the Supreme Court rules that hemp is not a Schedule 1 substance, however, CBD users still risk federal charges for possessing it. Therefore, it definitely shouldn’t be brought to areas operating under federal law; for example, airports.

Is it legal to buy CBD? Yes, if it is made from hemp and falls under the guidelines of the 2018 Farm Bill. Even federal authorities do not seem to be as concerned with people purchasing CBD as they are about them possessing it. It is not only legal to buy it but also to sell and transport it across state lines. Therefore, in general, neither buying nor selling CBD is considered a problem as far as the federal authorities are concerned.

In conclusion, what makes CBD legal or illegal is what it is made from, the THC content, and a person’s intent when using it. If the CBD is made from marijuana, contains large amounts of THC, and is used by a person to get high, it is generally illegal. If the CBD is made from hemp, has a low THC content, and is used to treat medical conditions, it is likely to be considered legal in all 50 states under the guidelines set out by the 2018 Farm Bill.