CBD Oils And Legal Status

CBD oils are becoming increasingly popular among medical patients, athletes, and consumers looking for muscle relaxation, general therapy, and anxiety reduction. But their legal status remains utterly confusing. This is due to a rule that the US Drug Enforcement Administration published regarding CBD last December.

In that rule, the DEA reiterated that all cannabis extracts are considered Schedule I substances. This includes CBD for pain relief. The agency said that the clarifying regulation was needed to bring US law into conformity with the United Nations' treaties governing controlled substances.

1Is CBD Legal?

CBD laws vary from state to state. While the DEA considers it illegal under federal law, CBD products remain available for sale in health supplement shops and organic food stores around the country. Some of them might not contain all that much CBD, though.

But the clarification only served to confuse consumers, CBD manufacturers, and retailers. And it was almost immediately challenged in court by a consortium of hemp and CBD oil producers. More recently, the DEA issued a clarification. It clearly stated that cannabinoids, such as tetrahydrocannabinol (THC), cannabinol (CBN), and cannabidiol (CBD), found in the flowering tops, resin, and leaves of the cannabis plant fall within the CSA definition of marijuana.

2Selling Is Riskier Than Possessing

In practice, selling CBD seems to be legally riskier than possessing it. The DEA's priority seems mostly to concern commercial violations. Most cases involved smoke shops and non-cannabis vape stores selling CBD cartridges.

In 2015, the police seized CBD cartridges at a vape store near Milwaukee, but the store owners were never arrested or charged. A 2014 law made it legal for patients to possess and use CBD oil in Wisconsin, but it did not make selling CBD oil legal. That same year, the police in central Florida arrested the owner of a local smoke shop chain for selling CBD products.

3CBD Is Legally Allowed In 44 States

Cannabidiol or CBD is just one of over a hundred cannabinoid compounds found in cannabis. THC is the cannabinoid most folks are after when looking for a high. In contrast, CBD is non-intoxicating. In the 28 states where medical marijuana is legal, CBD products are covered by those same medical marijuana legal protections.

In recent years, 16 states have passed CBD-only laws, which legalize the possession and use of CBD products for a specific qualifying condition. However, this does not include cannabis products containing higher levels of THC. Those CBD-only laws often limit the legal possession and use of CBD products to children with epilepsy and some nerve and muscle afflictions.

4Trials For Qualifying Patients

Alabama's laws allow CBD possession for qualifying patients through a clinical trial program at the University of Alabama. But the state doesn't carve out any legal protections for production or distribution. In the six states without CBD laws or medical marijuana laws, CBD remains a drug that's punishable, in theory, by arrest.

However, it seems to be an extremely low priority for most law enforcement agencies. There are only a few instances of anyone being arrested for CBD oil sales. And there have been no examples of arrest for simple possession.

5CBD Is Considered Illegal By The DEA

Even in those states with CBD legal protections, the substance is considered federally illegal by the DEA. Only six states—Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia—still consider every part of the cannabis plant, including CBD, to be illegal. 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.

In Georgia, for example, the legislature passed a law in 2015 that legalized possession of up to 20 ounces of CBD for patients with qualifying conditions like seizure disorders and multiple sclerosis. The law does not, however, set up any supply infrastructure; there are no licensed dispensaries or producers. Recently, the Georgia legislature passed a compromise law that includes Alzheimer's disease, AIDS, autism, epidermolysis bullosa, peripheral neuropathy, and Tourette's syndrome in the list of conditions that can be treated by CBD as long as that CBD oil has no more than five percent THC.

6Challenging The DEA

The Hemp Industries Association or HIA is a California-based, international, non-profit association with 74 US agricultural and commercial companies as members. RMH Holdings, on the other hand, is a Colorado hemp producer, while Centuria Natural Foods launched in 2014 as a hemp food producer. Since then, the company has entered many licensing agreements, including with Hi Brands International, Inc., a subsidiary of former presidential candidate Gary Johnson's Nevada-based company, Cannabis Sativa, Inc.

The companies challenge the method the DEA is using more than the impact. The DEA cannot create a statute. It can only be done by Congress.

7The Divided Opinions

Opinions are divided on whether the DEA's rule itself was legitimate. DEA officials contend that the inclusion of CBD in the Federal Register notice was almost an afterthought. They said that CBD has always been illegal, while cannabinoids are the controlled substances. The DEA's view on what constitutes a controlled substance has never changed.

On the other hand, some side with the DEA. The DEA makes it clear that they don't have to explicitly list anything as a controlled substance as long as the substance is intended for human ingestion, not approved as a drug by the US Food and Drug Administration, or is structurally or pharmacologically similar to another controlled substance. This change in the DEA rule doesn't make it any more illegal than it previously was. The new rule was an administrative change, and it has nothing to do with law enforcement.

8Proof That CBD Is Illegal

There are several pieces of evidence as proof that CBD has always been treated as illegal at the federal level. Congress has tried and is currently trying to pass bills to remove CBD from the Controlled Substances Act. This would have been unnecessary if the compound were already legal. Furthermore, the Controlled Substances Act itself specifies that the government has the right to control substances that are chemically similar to the ones explicitly listed.

9Can CBD Be Derived From Hemp?

The DEA's controversial late 2016 rule sparked a conversation about the connection CBD has with hemp, the non-psychoactive form of cannabis which many CBD manufacturers say they source their CBD from. According to the DEA spokesperson, a CBD product’s legality will depend on where it is sourced. If the products are derived from the non-psychoactive part of the marijuana plant, then you're talking of a non-controlled substance. As a rule of thumb, this means that whole hemp products that may contain CBD are legal, but CBD-isolated products are not. So hemp seed oil is federally legal, but hemp seed oil is not legally the same thing as CBD oil.

The 2014 Farm Bill legalized hemp production if it takes place for research purposes under an approved agricultural pilot program. Hemp, by these laws, is cannabis with less than 0.3 percent THC by dry weight. So hemp technically may contain some THC but in such minute amounts that it's not considered psychoactive at all.

10The Legal Morass

Did the DEA's recent rule on CBD destroy the market and end all access to the compound? In a word, no. The sky is not falling; however, this rule is a very concerning move by the DEA. What it purports to do is give the DEA control of all cannabinoids as a controlled substance.

Hemp growers weren't happy about the DEA's rule. The DEA skirted the established federal process that only Congress can add a new substance to the Controlled Substances Act. On Jan. 13, the Hemp Industries Association, RMH Holdings, and Centuria Natural Foods teamed up with a Denver-based cannabis law firm to challenge the DEA's rule, affecting CBD use for pain relief.