Is cbd oil legal The legal status of cannabidiol (CBD) is one of the mostmisunderstood issues in the cannabis industry. Despite being relativelystraightforward, the law is often misstated by news outlets, federalagencies, and non-governmental organizations. The primary cause ofconfusion is misuse of the word “cannabis.” In order to understand thelegal status of CBD, it is necessary to understand the legal status ofthe various forms of cannabis. This is because CBD’s legal status isbased on its source. This is the “Source Rule,” which I will discuss inmore detail in this article.  

The terms “cannabis,” “hemp,” and “marijuana” all have differentlegal meanings and significance. “Cannabis” is a scientific andbotanical term that has no formal legal definition or legalsignificance. It refers to Cannabis Sativa L (Cannabis),a genus of flowering plants in the family Cannabaceae. From a legalstandpoint, the word “cannabis” can describe a legal plant (industrialhemp) or an illegal one (marijuana).

Industrial hemp is a particular type of Cannabis that is lawful.Pursuant to the 2014 Farm Act, industrial hemp is exempt from thefederal Controlled Substance Act (CSA) when it is grown pursuant to astate pilot program and does not contain concentrations of delta-9tetrahydrocannabinol (THC) that exceed 0.3%. Additionally, Congress hasfurther protected industrial hemp by enacting several consecutiveappropriations acts, including the current one, that prohibit the use ofany federal funds to interfere with the “transportation, processing,sale, or use of industrial hemp…. within or outside the State in whichthe industrial hemp is grown or cultivated.”

On the other hand, marijuana is an unlawful type of Cannabis that hashigher concentrations of THC than industrial hemp. It is a controlledsubstance under the CSA.

CBD derived from industrial hemp is legal under federal law and thelaws of most states; however, CBD derived from marijuana is illegal. CBDis not included in the list of controlled substance under the CSA orthe equivalent statutes of most states. It is controlled and unlawfulonly when derived from marijuana. This is because marijuana is acontrolled substance, and its definition includes “all parts” of theCannabis plant except for the fibers of the mature stalks andnon-germinating seeds. For this reason it is a true statement thatchlorophyll is a controlled substance when derived from marijuana. Infact, CBD and chlorophyll share the same legal status under the CSA.

CBD derived from industrial hemp is lawful. Since CBD is not listedin the CSA’s schedule of controlled substances it is only controlledwhen derived from marijuana. Industrial hemp is a lawful exception tomarijuana and CBD derived from it is also legal. Additionally, since themature stalks of the cannabis plant are an exception to the definitionof marijuana, CBD derived from them is also lawful.

For these reasons, statements such as this one are inaccurate:

“CBD derived from the Cannabis Sativa plant is currently controlled as a Schedule I substance under the CSA.”

This is an actual statement made by a government agency. In fact, arule enacted by the DEA using similar terminology was the subject of arecent lawsuit filed by the Hemp Industries Association against the DEA.(The lawsuit prompted the DEA to clarify the rule on several occasionsand the Court to clarify that industrial hemp is not a controlledsubstance.) To say that all CBD is unlawful because it is a derivativeof Cannabis is nonsensical; there are lawful and unlawful types ofCannabis.

CBD’s legal status is about to become much less complicated, at leastwith respect to the CSA. The 2018 federal Farm Bill, which is likely tobe enacted this Fall, explicitly states that cannabinoids derived fromhemp, including CBD, are lawful in all 50 states. In effect, the 2018Farm Bill codifies the Source Rule by specifically articulating that CBDfrom hemp is lawful. Although that is the case now, the 2018 Farm Billclarifies in a single statutory provision what currently takes a shortarticle (or a legal brief) to articulate. Additionally, the 2018 FarmBill will eliminate the issue of state by state legality by making hempand CBD derived from it legal across the country in all 50 states.

Written by Attorney Rod Kight

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