This article is not legal advice, and is not to be taken as a legal standing on the status of cannabidiol and related products. Please consult an appropriate attorney’s office for legal advice on cannabidiol.
Introduction
The power of cannabidiol (CBD) to treat various medical and psychosocial conditions is heavily studied in the US, Canada, and the UK. A number of these extensive studies – often from reputable university and/or medical research facilities – have been conducted over the last 30 or so years, resulting in similar findings on the myriad uses of cannabidiol as reliable medical treatment. CBD is the non-psychoactive component of cannabis often prescribed by medical experts to treat a range of conditions from general anxiety to severe childhood epilepsy. Cannabidiol is given professional medical consideration in this context. It is invaluable to modern medical research.
In another, more casual context, CBD is found in oils, balms, brownies, and lollipops – sold in dispensaries, natural remedies stores, head shops, and gas stations across the country as a product to improve moods, soothe frustration, and calm the self overall. The more generic terminology associated with marketing and branding the drug as a general consumer product does not undo the legitimate capabilities of CBD.
In fact, the wide availability of CBD and its growing body of supportive research has brought it to the forefront of many a news media cycle of late. Celebrities vouch for it, doctors recommend and prescribe it, and sufferers of a growing list of disparate conditions testify its value. Just about the only area where cannabidiol faces scrutiny and backlash is the legal sphere. Despite its value add to the lives of so many, legislative and authoritative bodies in the US and abroad seek to classify and control cannabidiol in a similar fashion to its cousin chemical – tetrahydrocannabinol (THC). The sordid history and sometimes contradictory legal status of CBD, in the US especially, has led people to their search engines to find answers to a laundry list of politicized questions. This article will consolidate some of those questions and provide answers, explicate status, and link pertinent resources on some of the most common curiosities about the legality of cannabidiol.
Is CBD Schedule 1?
Back in December of 2016, the DEA announced its decision to classify CBD extracted from cannabis as a Schedule 1 Controlled Substance under the Controlled Substances Act (CSA). The DEA introduced a provision in the Controlled Substances Act, also at the end of 2016, that added CBD to the list of “marihuana extracts” (that spelling comes from the 1937 Marihuana Tax Act). which puts it in the same federal classification as cannabis. What does that mean? It means, yes, CBD is illegal on a federal level – if derived from cannabis.
The DEA issued an internal directive in May of 2018 to clarify some of the confusion over what does constitute CSA classified cannabidiol. From their site:
Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations. The mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.
To clarify, CBD extracted from cannabis differs in one small aspect against CBD extracted instead from industrial hemp. The singular trait that determines CBD’s legal status is that CBD derived from cannabis is known to possess a THC concentration above 0.3%. CBD derived instead from industrial hemp has a known THC concentration below 0.3% (defined in section 7606 of the Agricultural Act of 2014, or commonly known as the 2014 Farm Bill). So, as long as your CBD products come from industrial hemp extraction, you’re in no legal danger owning the product – federally speaking. In 2004, in the case Hemp Industrial Association (HIA) v. Drug Enforcement Association (DEA), Congress ruled that the DEA can only ban natural “marihuana” THC, with a very specific list of exceptions.
These exceptions include the components of cannabis that are justified as legally allowable industrial hemp. How do you know the source of your locally-available CBD products, and if it’s hemp or “marihuana?” Chances are, those CBD products extracted from cannabis are found only in medical dispensaries in states where medical marijuana legislation is already in effect. There is precedent, however, for raids and arrests made in certain states over confusion and misunderstanding about the definitions of all these terms or the presumed origins of a CBD product in accordance with the DEA’s Controlled Substances Act. This brings us to the next commonly asked question.
Is CBD Legal in My State?
For hemp-derived CBD, the short answer is: Yes. Citing the 2014 Farm Bill, legislators across all 50 states have been able to clarify the legal standing of hemp-derived CBD at the state level using federal legislative standing where state law is either non-existent or murky at best. The counter argument still exists, however, that the exception allowing for industrial hemp applies “only [when] institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp,” as also specified in the 2014 Farm Bill. The Omnibus Appropriations Act of 2016, however, included a provision (section 763) allowing for interstate sale and transport of hemp-derived CBD, stated: “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.”
Most states are fast developing laws about marijuana-derived CBD and related products to meet the growing availability and demand for them, and most state legislation includes provisions about CBD products as a component of their cannabis legislation overall. Regardless, at the federal level, marijuana-derived CBD is illegal and classified as a Schedule 1 drug via the Controlled Substances Act. DEA officials, however, have explicitly gone on record stating the agency will not make CBD transport, sale, or use a priority in their administrative actions.
States that allow recreational and medicinal use of the any marijuana-derived CBD product without needing a prescription are Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington. For those states that allow marijuana-derived CBD to be prescribed medicinally, the laws vary from state to state. States that have fully legalized the use of marijuana-derived CBD for medicinal treatment are: Alaska; Arizona; Arkansas; California; Colorado; Connecticut; Delaware; Florida; Hawaii; Illinois; Maine; Maryland; Massachusetts; Michigan; Minnesota; Montana; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Dakota; Ohio; Oregon; Pennsylvania; Rhode Island; Vermont; Washington and West Virginia.
The states of Alabama, Florida, Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming each have specific legislation to allow for prescription marijuana-derived CBD to treat explicit conditions (such as forms of Epilepsy, Multiple Sclerosis, or Parkinson’s Disease). The allowable concentrations of THC within the marijuana-derived CBD also varies in different states, from 0.3% to 8%.
Marijuana-derived CBD is completely illegal in the following 4 states: Idaho; Kansas; Nebraska; and South Dakota. Given that the legislation in these 4 states is still largely unclear, however, businesses do sell CBD. Be mindful of this fact if you live in one of these states and decide to use CBD products. It’s highly recommended you consult your specific state laws to determine legal standing of CBD.
Use of marijuana-derived CBD often leads consumers, families, and other curious parties to ask the next question on our list.
Does CBD Get You High?
Cannabidiol does not bind to your CB1 receptors in the brain, which is what tetrahydrocannabinol (THC) does. One result of THC binding to CB1 receptors is “getting high,” the psychoactive effect of cannabis use. In the instance of hemp-derived CBD, the short answer is: No, CBD does not get you high. Marijuana-derived CBD, however, requires further exploration. The longer answer is that CBD, in fact, counteracts the psychoactive effects of THC. CBD’s ability to act as an anti-inflammatory and anxiolytic compound that will block the uptake of THC to CB1 receptors, when taken in conjunction, are the largest contributors to its popularity as a health aide and consideration as a medicine instead of a drug. So, in the case of marijuana-derived CBD, the answer may still be that users will not “get high” as thought of with general use of other cannabis products, or even that the use of CBD can counteract a feeling of being “too high” when using THC heavy cannabis products and other potential negative side effects of using THC heavy cannabis. While CBD may not make users high, another important question asked is concerned with a different physiological pitfall often associated with cannabis products.
Does CBD Show on a Drug Test?
This question also requires distinction between the two varieties of CBD products available across different states. Hemp-derived CBD with a THC level of 0.3% or less should bear a negative result for THC on all employment drug screenings. Hemp-derived CBD, in order to maintain legal status in all 50 states, is required to have so low a level of THC – down to zero – that experts argue any positive result from a hemp-derived CBD user should be considered a false positive.
In the case of marijuana-derived CBD, well, given the levels of allowable THC can reach up to 8% – depending on where you live – you can and should expect to test positive for THC. In all cases, CBD itself will not show on any pre-employment drug screening, as drug screens test expressly for THC levels, with CBD as a non-issue. One aspect of cannabis, according to leading cannabis researcher, Raphael Mechoulam, is what he’s coined “the entourage effect.” Mechoulam discovered that one property of cannabinoids that makes them most effective in their therapeutic effects is when they’re used together. Meaning, don’t always trust that your CBD products are 0% THC; know where your CBD products are manufactured, whether your products are derived from hemp or marijuana, and what levels of other cannabinoids may be present in the product.
Conclusion
Cannabidiol is a tricky substance. In all 50 states, hemp-derived CBD is a totally legal product, and legislators across states have made considerable efforts and great strides to update antiquated laws commensurate with the federal legislation found in the Agricultural Act of 2014 and the Omnibus Appropriations Act of 2016. Given the mounting research to support the medical properties of CBD, lawmakers have no choice but to address the growing pool of science, especially as use of CBD – whether hemp-derived or marijuana-derived – exponentially advances year after year. Hemp-derived CBD is a general consumer product purported to have anti-inflammatory, anxiolytic, and analgesic effects, making it a great daily use product for people with anxiety and depression, inflammation, insomnia, and even some cancers or epileptic conditions. Marijuana-derived CBD is of similar effect, with the added value of the positive effects of THC (where legally allowed), as CBD helps counter the negative side effects of the extant THC. Regardless, CBD in all its forms is still so new that research is in relative infancy, news outlets frequently write about its boom in use, and businesses have found countless ways to package and sell it as consumer goods like bath bombs, dabs, chapsticks, pet treats, and even gummy bears (like the ones we reviewed from Hemp Bombs). As new as CBD is, it’s important to stay current on its status here in the US, especially if you’re considering using it yourself.
