Home Sources of CBD Hemp vs. Cannabis: The Legality Issue

Hemp vs. Cannabis: The Legality Issue

Another hot topic in the cannabis versus hemp CBD debate surrounds legality. Many people think that hemp-derived CBD is legal. Period. If you search for “hemp CBD” or “hemp extracts” on Amazon, for example, you’ll find many products that are legal to purchase no matter where you are in the country. And in the midst of a hemp-farming revival here in the US, there are many domestic hemp farmers selling their CBD extracts and products online, shipping to all 50 states. But the quality and amounts of CBD in these products can be questionable.

With cannabis-derived CBD, the legality issue is clear: If you live in a state with no medical program and no adult-use legislation, it is straight up illegal. If you live in a state with a medical program, it’s legal for you if you are a registered patient. If you live in a state with a medical program and adult-use legislation, you’re aces. It’s also very clear that transport across state lines, even from one legal state to another, is not permitted.

When it comes to hemp-CBD, everything gets a lot more complicated. Is hemp-derived CBD legal? The answer to that question is a big, fat, confusing “it depends.” Ultimately, it depends on where you live, because CBD laws (even for hemp-derived products) vary by state. So when you see the claim “legal in all 50 states,” it’s not entirely accurate, even if you can go online, purchase it, and have it shipped right to your door.

Here’s why.

In 2014, the Farm Bill (also known as the Agricultural Act of 2014) was passed. It was here that a caveat was added to federal law officially differentiating hemp from cannabis. Under section 7606 of the Act, industrial hemp is differentiated from cannabis as long as no part of the plant (including the leaves and flowers) exceeded a THC concentration of “more than 0.3% on a dry weight basis.”

Section 7606 also laid out a legal exception for growing industrial hemp in the United States under the auspices of state-approved pilot research programs. Before then, hemp could not be legally cultivated here. All hemp-derived source materials for manufacture, along with many finished products, were imported from abroad. After the Farm Bill passed, American farmers could grow hemp for the first time in decades, so long as individual states legalized industrial hemp farming and opted into the federally sanctioned pilot research programs.

But at the federal level, all cannabinoids, including CBD, are still technically illegal, regardless of source. In 2016, Congress released a statement in the Omnibus Appropriations Act of 2016 (P.L. 114-113) (“the Funding Act”), which reads:

“None of the funds made available by this act or any other act may be used…to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”

This effectively means that hemp producers operating in a state that is compliant with the Farm Bill can ship their products across state lines with confidence that the DEA should not interfere. DEA spokesperson Rusty Payne even went so far as to say:

“It would not be an appropriate use of federal resources to go after a mother because her child has epileptic seizures and has found something that can help and has helped. Are they breaking the law? Yes, they are. Are we going to break her door down? Absolutely not. And I don’t think she’ll be charged by any US attorney.”

OK, great! So states working within the confines of the Farm Bill can legally produce and sell their products, and ship them anywhere in the country.

But, again, the legality issue as it’s relevant to you, the consumer, depends where you live.

If you live in a state that has its own hemp laws and is operating under the guidelines of the Farm Bill program, you’re golden! You can buy products produced in your state, or buy products from producers in other states who are in compliance with the Farm Bill program. If you live in a state with a medical cannabis program (and you are a card-carrying patient) or adult-use laws, CBD is covered and protected under those laws.

If you live in a “CBD-only” state, things get complicated again. In recent years, 17 states have passed CBD-only laws, which legalize the possession and use of CBD products for specific qualifying conditions—but not cannabis-derived products containing higher levels of THC. CBD-only laws often limit the legal possession and use of CBD products to children with epilepsy, and some nerve and muscle afflictions. 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. So if you live in a CBD-only state, you need to know the particular laws of your state. Assuming you are in compliance with those laws, you can source hemp-CBD products.

If you live in a state that has no hemp laws, hemp-CBD products are technically illegal. In these states there are laws against cannabis, and with no hemp-specific laws, hemp falls under the bigger cannabis umbrella. At the time of this writing there are only two states—Idaho and South Dakota—where this was the case. In these two states without hemp, CBD-only, or medical/adult-use cannabis laws, CBD remains a drug that’s punishable, in theory, by law.

So, to reiterate, if you live in a state with no hemp laws, or in a state with CBD-only laws, you need to understand the laws applicable in your state and make choices for acquiring hemp-CBD that you are personally comfortable with.

As of this writing, new legislation is being fast-tracked through the Senate to legalize hemp farming. The Hemp Farming Act of 2018 was introduced in April and will legally differentiate industrial hemp from cannabis, allowing for its cultivation and commercial use. It would remove non-psychoactive cannabis varieties known as hemp from the Controlled Substances Act, making hemp-derived, CBD-rich extracts legal.

The Act will also establish hemp as an agricultural commodity, protect state regimes, add crop insurance, and bolster research. The bill would allow states to regulate hemp, while also allowing hemp researchers to apply for grants from the Agriculture Department, according to the office of Senate Majority Leader Mitch McConnell (R-Ky.). McConnell, along with Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.), and Jeff Merkley (D-Ore.), support the legislation.

“By legalizing hemp and empowering states to conduct their own oversight plans, we can give the hemp industry the tools necessary to create jobs and new opportunities for farmers and manufacturers around the country,” McConnell said in a public statement.