Cannabidiol (CBD) seems to be all the rage right now. CBD is one of dozens of cannabinoids found in the cannabis plant, and until recently, was not that popular. But in the last handful of years it has exploded in popularity thanks to a handful of reasons. A number of studies have found that CBD can help treat various ailments, which combined with the fact that it does not cause the level of euphoria that THC does, makes it desirable to many people. That, coupled with the significant rise in mainstream media coverage of CBD, has made CBD a topic that is very popular with the American public right now and there appears to be no end in sight to the increased level of public interest.
The rise in interest in CBD has been paralleled by the rise in availability of CBD products. CBD products are on sale all over the internet, and sometimes even in department stores. Many articles and spammy internet posts tout that CBD is ‘legal in all 50 states’ and can be shipped anywhere in America, but is that true? As with most things cannabis related, the answer is complicated.
Some CBD products can actually be legal in all 50 states, but it depends on how they were made, and where they were made. Hemp and marijuana are essentially the same thing, but for the purpose of public policy, they are separate. Hemp is defined as containing less than 0.3 percent THC. Anything above that threshold and it’s considered to be marijuana. Marijuana, whether it is imported or grown domestically, is federally prohibited in America. Hemp on the other hand is not as straight forward.
Hemp, just like (public policy defined) marijuana, contains CBD. CBD derived from marijuana is federally prohibited, but CBD derived from hemp can be legal in some instances. According to U.S. Customs and Border Protection imported hemp products (including hemp derived CBD products) are legal as long as they ‘do not cause THC to enter the human body are therefore legal products.’ CBD products made from hemp that are imported from overseas are almost always of low quality, often being made from hemp paste from China. These products, while legal, are basically modern-day snake oil and are not something I would recommend consuming.
Domestic hemp, and the products made with it, are federally prohibited but with exceptions. Section 7606 of the Agricultural Act of 2014 allows legal hemp cultivation in states that have legalized hemp at the state level via a pilot program or research program. CBD products can be made from the legally grown domestic hemp, and sold inside the state that they were made in. The same can somewhat be said about CBD products made from state-legal marijuana plants, in that if they are sold in the state they were made, there are some federal protections in place via the Cole memo. However it’s worth noting that the current United States Attorney General has stated that marijuana prohibition remains in effect in all 5o states, seeming to disregard any protections outlined in the Cole memo.
Where things get particularly hairy is when CBD products move across state lines. This is true both for brick and mortar outlets as well as online stores. The DEA has stated clearly and emphatically that CBD products are illegal, and that people that sell them could be arrested and prosecuted, no exceptions. The FDA has also issued a recent warning to entities selling CBD products. Some people will point to section 763 of the Omnibus Appropriations Act of 2016 which states that, ‘None of the funds made available by this Act or any other Act may be used- (1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5940); or (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.
The DEA and FDA do not touch on any exceptions for domestic hemp and previously mentioned federal exemption language in their statements. So it basically comes down to who do you believe, the people selling CBD products made from domestic hemp, or the feds? Ultimately what it will take for the issue to be decided once and for all is the DEA taking action on someone, the person or people affected taking legal action, and letting the courts decide what is fact and what is fiction. That is going to be a major pain if/when that happens, and it will no doubt be a long court battle, but that’s the only way I see this issue being resolved once and for all.
Something that may turn this all on its head is the likely rise in availability of CBD products that are not made from marijuana or hemp at all. Marijuana is not the only plant that produces CBD. Hops are being used to make CBD products now too, and since hops are less controversial than marijuana or hemp (for better or worse), it could result in a huge boom for people that make CBD products from them or other non-marijuana sources. It’s worth noting that in order for CBD to provide the most wellness benefits possible, it needs to contain some THC, but that may or may not matter to consumers in the long run (though it should!).
If you sell CBD products made from marijuana or hemp, you run the risk of having action taken against you. That is not my personal opinion and definitely not something that I support, but it is the reality of the situation given the stance of the federal government. This is not to be confused with whether someone can get away with it or not, because obviously people are doing it every day. As one of my old law professors used to say, a law is only as good as the enforcement behind it. The feds are only able to play whack-a-mole, and do not have the resources to go after everyone. What I am saying is that just because the CBD product is on sale does not mean that it is legal. Bootleg Nike t-shirts are on sale at swap meets across America, but that does not mean that the sales are legal!
If you purchase CBD products, it also doesn’t necessarily mean that your purchase was legal, but it also doesn’t mean that the purchase was necessarily illegal either. It all depends on the product, where/how it was created, and where/how it was sold. Your best bet for legality purposes as well as quality purposes is to purchase CBD products form a licensed dispensary. Otherwise you may be committing a crime and/or purchasing a product that is not fit for human consumption. If you disagree with anything in this article, which I am sure that there will be people that do from both sides of the equation, sound off in the comments section below.