First off… hemp, cannabis, marijuana… whatever you want to call it… it's all from the same plant species: Cannabis sativa. Putting the debate to rest, the US DEA specifically states: CBD oil is not ‘legal in all states’
In the past couple years there has been an explosion of companies promoting what “hemp-derived CBD oil” and claim is legal in all 50 states. It’s not. At least, that’s what the DEA is telling us in its latest clarification on the issue.
According to several manufacturers, their “CBD oil extracted from hemp plants grown in Northern Europe” is legal because “hemp oil has been a legal import to the United States for decades.” Notice how the reference to “CBD oil” is supported by the legality of “hemp oil?” There are also claims stating “CBD (and even THC) found naturally in hemp products are legal at the U.S. federal level because hemp consumer products are legal at the federal level.”
Yes, “hemp oil” has been legal for decades… but “hemp oil” is not CBD. I know… hemp and marijuana are technically not the same… they are both cannabis, but different species of cannabis… however, the government doesn't legally differentiate, and each has different uses. Lets dive into some history and legal definitions…
In the early 2000s, the DEA tried to ban hemp food products due to their trace THC content. In the 2004 case, Hemp Industries Association (HIA) v. DEA, the court found that Congress banned “marihuana” (notice the federal government still maintains the spelling used in the original Marihuana Tax Act of 1937) and “synthetic THC.” Therefore, DEA can ban all synthetic THC, but they can only ban natural THC if it is within or extracted from “marihuana,” as it is defined in the law.
That Controlled Substances Act (CSA) definition is where the CBD oil manufacturers and marketers find the loopholes they claim to be wiggling through. It reads:
“The term ‘marihuana’ means all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resins; but shall 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.”
To break it down easier to read, these things are “marihuana:”
- Live cannabis plants;
- Dead cannabis plants;
- Cannabis seeds;
- Cannabis resin from any part of the plant;
- Anything you derive from the plant;
- Anything you derive from cannabis seeds;
- Anything you derive from cannabis resin.
And these things are the exceptions that are not “marihuana:”
- Mature cannabis stalks;
- Fiber from cannabis stalks;
- Oil made from cannabis seeds;
- Cake (flour) made from cannabis seeds;
- Anything you derive from cannabis stalks, except resin;
- Anything you derive from fiber from cannabis stalks;
- Anything you derive from oil from cannabis seeds;
- Anything you derive from cake (flour) from cannabis seeds;
- Seeds that are incapable of germination.
One manufacturer explains that they “use the parts of the plant that are NOT marijuana—the mature stalks & sterilized seeds.”
But the DEA specifically states:
“According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. Thus, based on the 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, such as oil from the seeds.”
To break it down… CBD oil is cannabis oil containing cannabidiol. It is made from the flowers, leaves, resins, and stalks of hemp. Hemp oil is made from the legal parts of hemp, and would only contain trace amounts of CBD.
There are other attempts to fit CBD through a loophole: “cannabidiol is not listed on the Controlled Substances Act (CSA) Drug Schedule.” That is true… it is not listed in the CSA. However, within the legal definition “marihuana” is “anything you derive from the plant” except anything derived from mature stalks and seeds… and the DEA is telling us CBD can only be derived from resin in flowers and leaves, or when trace amounts stick to the exterior of stalks and seeds.
Many people and companies who defend CBD oil’s legality incorrectly claim: “natural cannabinoids in hemp products are exempt from DEA enforcement.” That is only true for natural THC. The HIA v. DEA decision worked with THC because Congress defined synthetic THC and marihuana separately. The court wrote: “If naturally-occurring THC were covered under THC, there would be no need to have a separate category for marijuana, which obviously contains naturally-occurring THC. Yet Congress maintained marijuana as a separate category.”
Is CBD legal through the Farm Bill?
Section 7606 of the Farm Bill did define industrial hemp as cannabis plants with less than 0.3% THC. Hemp plants farmed in Europe are, indeed, cultivated at less than 0.3% THC. Therefore “technically” hemp cultivated in accordance with the Farm Bill *should* be legal…
However, the Farm Bill’s definition of hemp is just an exception to provide that “Notwithstanding the Controlled Substances Act… an institution of higher education or a State department of agriculture may grow or cultivate industrial hemp if… allowed under the laws of the State.”
To break down that law in more normal terms… it means the Farm Bill’s definition tells us: although cannabis is an illegal plant, we’ll allow universities and state agriculture departments grow extremely-low THC versions of it.
Legal Conclusion of CBD's Legality:
- The cannabis plant, regardless of its THC content or where it is grown… the DEA considers it “marihuana,” unless it was a hemp plant grown by a university or state agriculture department.
- Whatever you extract from a hemp plant is “marihuana,” except what you extract from stalks and seeds
- The DEA states any substances derived from the stalks and seeds couldn’t possibly be CBD because CBD can only come from resin, and all resin from anywhere on any cannabis plant (except or the trace amounts stuck to the stalks and seeds) is “marihuana.”
States that specifically legalized CBD oil (as of July 2018):
As of 2018, there are 9 States where the Cannabis plant (both marijuana and hemp) are completely legal for recreational and medicinal use: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. So if you live in one of these states, you are free to legally use CBD in any form, without a prescription.
Arizona, Arkansas, Connecticut, Delaware. Florida, Illinois, Maryland, Michigan, Montana, New Jersey, New Mexico, New Hampshire, New York, Minnesota, North Dakota, Ohio, Oklahoma, and Pennsylvania do allow cannabis for medicinal purposes with a qualified prescription. However, only 17 states have specifically listed CBD in their laws… and most of them require medical prescriptions.
- Alabama – “a prescription for the possession or use of cannabidiol (CBD) as authorized by this act shall be provided exclusively by the UAB [University of Alabama at Birmingham] Department for a debilitating epileptic condition.”
- Georgia – allowed under 5% THC to be used medicinally with a prescription for a predetermined list of ailments: seizure disorders, sickle-cell anemia, cancer, Crohn's disease, ALS, multiple sclerosis, mitochondrial disease, Parkinson's disease, and PTSD
- Indiana – allows the use of cannabidiol that is at least 5% CBD and contains no more than 0.3% THC for treatment-resistant epilepsy. And allows retail sales of “low-THC hemp extract,” defined as a product derived from Cannabis sativa L. that meets the definition of industrial hemp; that contains not more than 0.3% delta-9-THC (including precursors); and that contains no other controlled substances.”
- Iowa – The law allows patients to possess and use (but not to manufacture or sell) medical cannabidiol for medicinal purposes, if it is less than 0.3% THC, for a predetermined list of ailments: Cancer (with severe or chronic pain, nausea or severe vomiting, cachexia or severe wasting); multiple sclerosis with severe and persistent muscle spasms; seizures; AIDS or HIV (as defined in section 141A.1); Crohn’s disease; Amyotrophic lateral sclerosis (ALS); any terminal illness, with a probable life expectancy of under one year (if the illness or its treatment produces one or more of the following: severe or chronic pain, nausea or severe vomiting; cachexia or severe wasting); Parkinson’s disease; and untreatable pain.
- Kentucky – The law excludes from the definition of marijuana the “substance cannabidiol, when transferred, dispensed, or administered pursuant to the written order of a physician practicing at a hospital or associated clinic affiliated with a Kentucky public university having a college or school of medicine.” The law does not address how patients may obtain the CBD.
- Mississippi – allows for cannabis extract, oil, or resin that contains more than 15% CBD and less than 0.5% THC. “The CBD oil must be obtained from or tested by the National Center for Natural Products Research at the University of Mississippi and dispensed by the Department of Pharmacy Services at the University of Mississippi Medical Center.” The law also provides an affirmative defense for defendants suffering from a debilitating epileptic condition.
- Missouri – allows the use of cannabis oil that is at least 5% CBD and less than 0.3% THC for intractable epilepsy. The bill requires a neurologist to determine that the patient did not respond to at least three treatment options to be eligible to use the marijuana extract. Only patients with a diagnosis of intractable epilepsy who meet the program's criteria will be authorized to receive a registration card, which allows them to possess and use CBD oil in the state.
- North Carolina – “hemp extract must be composed of less than 0.9% THC, at least 5% CBD, and may contain no other psychoactive substances.” By law, patients are allowed to use and possess CBD, but it remains illegal to cultivate or produce hemp extract in the state. People who have the DHHS Caregiver Registration letter are allowed to carry hemp extract outside their homes.
- Oklahoma – allows the use of cannabis oil that is no more than 0.3% THC for treating severe forms of epilepsy, spasticity due to multiple sclerosis or due to paraplegia, intractable nausea and vomiting, and appetite stimulation with chronic wasting diseases.
- South Carolina – allows patients to use CBD only with a prescription written certification signed by a physician “stating that the patient has been diagnosed with Lennox-Gastaut Syndrome, Dravet Syndrome, also known as ‘severe myoclonic epilepsy of infancy', or any other severe form of epilepsy that is not adequately treated by traditional medical therapies and the physician's conclusion that the patient might benefit from the medical use of cannabidiol.” Those patients may use CBD oil that is less than 0.9% THC and more than 15% cannabidiol, which is to be provided by the Medical University of South Carolina in a study to determine the effects of CBD on controlling seizures.
- Tennessee – allows the use of CBD oil that is less than 0.9% THC and that is “obtained legally in the United States and outside of” Tennessee.
- Texas – allows the use of cannabis oil that is no more than 0.5% THC and at least 10% CBD for treating intractable epilepsy. The bill requires patients to get approval from two certified specialists.
- Utah – allows the use and possession of marijuana extract by people with intractable epilepsy who have a prescription signed by a neurologist. The extract must be composed of less than 0.3% THC, at least 15% CBD, and may not contain any other psychoactive substance. The extract must be obtained in a sealed container from a laboratory that is licensed in the state where it was produced, with a label stating the extract's ingredients and origin, and transmitted by the laboratory to the Utah Department of Health. To legally possess hemp extract under Utah law, an individual must apply for and obtain a hemp extract registration card from the Utah Department of Health, Office of Vital Records and Statistics (OVRS).
- Virginia – individual may only possess CBD with valid written prescriptions for treatment or to alleviate the symptoms of any diagnosed condition or disease determined by the practitioner to benefit from such use. The oil must contain at least 15% CBD and no more than 5% THC.
- Wisconsin – allows the use of CBD oil to patients under the stipulation that the patient have a hard copy of a letter or other official documentation from a physician stating that the individual possesses cannabidiol to treat a seizure disorder if the cannabidiol is in a form without a psychoactive effect.
- Wyoming – allows patients to use of hemp extract that contains at least 15% CBD and no more than 0.3% THC for treating intractable epilepsy.
My personal thoughts:
Now, I'm not against the use of CBD oil… I just want to discuss the legality because it's a question I'm frequently asked. There is no doubt in my mind that CBD oil has some amazing therapeutic effects. I feel the same way about essential oils. I love companies that provide CBD oil to patients in states where it is legal, and I admire the patients who seek the info they need to acquire CBD oil in a legal manner.
My problem with many CBD manufacturing and marketing companies is that they entice patients to buy and business owners to sell their product with our disclosing the full truth.
Manufacturers and marketers claim is nothing illegal about CBD, when the DEA clearly states it is. That being said… is the DEA going to start raids over a non-psychoactive product? I don't know. The fact of the matter is they can… and it doesn't matter whether its being used responsibly or not… the fact is they legally can. The fact is that it is morally wrong to sell any product to consumers without FULLY disclosing all of the legal risks involved. The fact is that many CBD marketing/manufacturing companies are flat-out telling consumers that it is legal, when it is not.
What worries me is we are living in a society where it seems that trouble can be found in any direction, especially among those of us who strive to lead more natural lives. I personally would not want to have illegal CBD possession slapped on us because I failed to do my due diligence.
I'm a firm believer in empowering people to do what is right for them. With that being said, I do not advocate for CBD oil in any location that it isn't specifically listed as legal. I refuse to assume any responsibility with recommending any substance that is not legal in all areas where you, my readers, may be located… especially when alternatives ARE available.
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