| July 28, 2019 | Lifestyle
CBD has grown in popularity over recent years; used by everyone from chronic pain sufferers to athletes to people experiencing depression and anxiety, its potential applications are vast and diverse. Despite its ever-increasing rate of consumption, marijuana-derived CBD (an important distinction we’ll discuss in a moment) remains illegal in four states.
That’s because each US state has its own laws regarding the conditions under which marijuana-derived CBD is legal and how it is to be obtained, further muddying the waters. There is good news, though: thanks to the 2018 Farm Bill, hemp is legally distinguished from its intoxicating cousin marijuana, and is defined as an agricultural commodity, not an illicit substance. Therefore, hemp-derived CBD is legal at the federal level in all 50 states, as well as in Washington D.C.
Legality of CBD: A Possible Caveat
That said, a few counties in states like Texas and North Carolina have filed criminal charges against patients for possessing CBD products — these cases are still being prosecuted and have not yet resulted in convictions. To date, the cases have not involved CBD in the homes of private individuals; CBD products were confiscated from patients while traveling. While it’s unlikely that any convictions would hold up to the appeals process, that’s not realistic for most of us (who has the time and resources for a drawn-out court case?) and doesn’t appear to be deterring prosecutors from filing the charges anyway.
All this to say, it’s important to be aware of your local jurisdiction’s stance on CBD, especially in states (like Texas and North Carolina) that refuse to issue guidance in the face of such ordinances. This article is written with the common interpretation of the law in mind, and is applicable for most readers. However, like many new laws, the 2018 Farm Bill’s provision for hemp and CBD legality is experiencing some pushback in a few places. If you live in one of those places, take appropriate precautions, especially when traveling with CBD.
Legal CBD: A Breakdown of Federal Policy
Even at the federal level, the legal status of CBD hasn’t always been clear, and not even all government agencies seem to be in full agreement. A statement from the DEA in December 2016 declared that all cannabis extracts (CBD included), regardless of their origin (hemp or marijuana), are illegal under federal law and their possession is therefore potentially subject to prosecution.
This was the DEA’s attempt at saying; you can legally grow hemp under the 2014 version of the Farm Bill, but you can’t extract CBD oil from it. This declaration is being challenged in court by CBD manufacturers and patients alike, but pending a court decision or a change in federal law, it continues to be a legal grey area.
To be clear, this strict interpretation of the law hasn’t been enforced so far (and even if it were, many states have legal protections in place to shield people from immediate federal prosecution for possession of CBD). It is our position that technically, hemp-derived CBD remains legal in all 50 states—until we see enforcement that demonstrates otherwise. This is further evidenced by the fact that even stores like Whole Foods have begun stocking hemp-derived CBD products. Although we’d suggest purchasing from a more reputable company instead.
Since every state has its own laws regarding the legality of marijuana-derived CBD products, the question, “Is it legal?” can be tricky to answer. Here, we’ll discuss how different CBD products are classified under the law, then lay out their legality state by state.
Hemp vs. Marijuana-Derived CBD: The Legal Differences Between Cannabinoids
Cannabis contains an assortment of cannabinoids, a class of chemicals that act on the endocannabinoid receptors of the brain. THC, the flashiest and most well-known of the cannabinoids, is responsible for the high you get from cannabis consumption and is the reason the plant has been so heavily legislated against.
Here’s where it starts to get a bit technical: the term “cannabis” can refer to both marijuana, the high-THC variety of the plant that is illegal in many states and at the federal level, or hemp, the variety of the plant that contains less than .3% THC levels (according to federal regulations). Hemp was made legal for cultivation at the federal level under the 2018 Farm Bill, which legally separates hemp from marijuana and defines it like any other agricultural commodity.
While CBD, CBN, CBG, and other non-psychoactive (meaning they won’t get you high no matter how much you smoke) cannabinoids can be extracted from marijuana, they are most commonly extracted from hemp in an effort to skirt legal prohibitions on marijuana extracts. If these extracts are derived from hemp, they are technically legal in all fifty states and the District of Columbia.
That said, the FDA still considers CBD a drug, and has therefore been putting pressure on companies who sell it and other cannabis extracts. Additionally, most states that have legal CBD programs in place don’t have any kind of infrastructure for patients to purchase it legally. This effectively means that, while patients can legally possess and use CBD, they may not have any legal access to it in their state. This can make procuring CBD through a dispensary difficult even in areas where its use is legal. Some sellers rely on the ambiguity of local and federal laws to continue to operate in the communities they serve. Others make their products available online, since shipping Farm Bill-compliant CBD is (technically) legal nationwide.
So, to recap: hemp-derived CBD is, under the 2018 Farm Bill, legal for use everywhere in the US without a medical use license or prescription, which is how online CBD companies operate. However, marijuana-derived CBD is a trickier subject—because of its higher THC content, it remains illegal in many states. Next, we’ll give you the rundown of what types of marijuana-derived CBD legislation each state has enacted, and what that means for you as a consumer.
Marijuana-Derived CBD: States Where Fully Legal for Both Medical and Recreational Use
The District of Columbia and a total of eight US states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington—allow recreational marijuana use. This means that in these states, you can purchase and use marijuana-derived CBD products without a medical prescription.
In November, Michigan affirmed a measure that legalizes marijuana use for both medical and recreational purposes, making it the first state in the Midwest to legalize the herb. This means that CBD is now legal for consumption without a medical prescription in Michigan. However, it will be some time before the market develops enough to make recreational cannabis (and marijuana-derived CBD) widely available to the general public.
Marijuana-Derived CBD: States Where Legal for Medical Use Only
At present, the use of marijuana and marijuana-derived CBD is legal for medical use, often to treat hard-to-treat or drug-resistant conditions like epilepsy and multiple sclerosis, in 46 states, including the eight mentioned above.
In 37 of these states (excluding the nine where all cannabis is legal for recreational use), you must have a medical prescription to obtain marijuana-derived CBD products from licensed dispensaries. The amount of THC permitted in these products varies from state to state, with some requiring levels of .3% or lower and others going as high as 8% (see the table below for more details on your state’s specific restrictions).
To get more specific, the following 21 states allow for the medical use of all marijuana products, including CBD: Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Maryland, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, Vermont, and West Virginia.
The remaining 17 states (confusingly enough, including Delaware from the previous 21)—Alabama, Florida, Georgia, Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming—have enacted legislation that allows only for legal medical use of CBD oil, not other cannabis extracts.
The THC content permitted for CBD products varies from state to state under this type of legislation (see below for more details on your state’s requirements), so it’s important to make sure that any CBD you obtain in those states is compliant with their limits. When in doubt, opt for Farm Bill-compliant CBD extracts to stay as far within the law as possible.
Marijuana-Derived CBD: States Where Illegal for All Purposes, Both Medical and Recreational
There are currently four American states that outlaw any marijuana product of any kind, including CBD. Despite CBD’s legal status, these states—Idaho, Kansas, Nebraska, and South Dakota—are still home to businesses able to sell CBD products, due to either a lack of enforcement or the difficulty of interpreting the overlap of federal and state laws.
One Idaho business, for example, has skirted the legal issue by making the claim that all of their CBD is derived from mature cannabis stalks, a part of the plant which is not considered marijuana under that state’s law. Situations like this demonstrate the confusing and often contradictory nature of the legality of CBD. If you live in one of these states, we suggest purchasing hemp-derived CBD as it complies with the 2018 Farm Bill and can be ordered online.
CBD & Drug Testing
Drug testing is a minefield for many cannabis consumers (even those in legal states), and it’s reasonable to wonder if, as a cannabinoid, CBD might show up on a drug test. The short answer is, it’s complicated.
Like so much of the science behind cannabis and hemp, there’s a lot we don’t yet understand about the way taking CBD could potentially impact drug testing. Avoiding full-spectrum products containing trace amounts of THC can help limit your risk of a false positive, but a small handful of studies suggests that even isolate products may not be fully without risk, especially at high doses.
There’s no conclusive consensus that there’s zero risk of a false positive when taking CBD, so it’s important to be mindful of that risk when deciding whether CBD is right for you. If routine drug testing is a condition of your employment, we encourage you to read our article about CBD and drug testing to make an informed decision.
Is CBD Legal In Your State?
Take a look at the table below to see the circumstances under which marijuana-derived CBD is legal in your state.
|State||Hemp-derived CBD legal||Marijuana-derived CBD legal without a prescription||Marijuana-derived CBD legal by prescription||Medical CBD legal under certain conditions|
|Alabama||Yes||No||Yes||Only permitted for cases of epilepsy (Carly’s Law 2014)|
|California||Yes||Yes||Yes||Get Your California MMJ Card here|
|Colorado||Yes||Yes||Yes||Get Your Colorado MMJ Card here|
|Delaware||Yes||No||Yes||Only permitted for drug-resistant epilepsy and muscle contractions in children (Rylie’s Law 2015)|
|Florida||Yes||No||Yes||No more than 8% THC; only permitted for certain conditions, such as seizures (2014)|
|Georgia||Yes||No||Yes||No more than 5% THC; only permitted for certain conditions, such as PTSD and chronic pain (Haleigh’s Hope Act 2015)|
|Indiana||Yes||No||Yes||No more than .3% THC; only for drug-resistant epilepsy (2017) Notably one of the only states to officially legalize hemp-derived CBD (2018)|
|Iowa||Yes||No||Yes||No more than 3% THC; only for certain chronic conditions such as MS (2017)|
|Louisiana||Yes||No||Yes||Only permitted for certain chronic conditions such as MS (2017)|
|Michigan||Yes||Yes (as of November 2018)||Yes|
|Mississippi||Yes||No||Yes||No more than .5% THC; only for children with severe seizures (Harper Grace’s Law 2014)|
|Missouri||Yes||No||Yes||No more than .3% THC; only permitted for drug-resistant epilepsy (2014)|
|Nevada||Yes||Yes||Yes||Get Your Nevada MMJ Card here|
|New York||Yes||No||Yes||Get Your New York MMJ Card here|
|North Carolina||Yes||No||Yes||No more than .3% THC; only permitted for drug-resistant epilepsy (2014)|
|Oklahoma||Yes||No||Yes||No more than .3% THC; only permitted for drug-resistant epilepsy (2015)|
|South Carolina||Yes||No||Yes||No more than .9% THC; only permitted for drug-resistant epilepsy (Julian’s Law 2014)|
|Tennessee||Yes||No||Yes||No more than .9% THC; only permitted for drug-resistant epilepsy (2015)|
|Texas||Yes||No||Yes||No more than .5% THC; only for drug-resistant epilepsy (2015)|
|Utah||Yes||No||Yes||No more than .3% THC; only permitted for drug-resistant epilepsy (Charlee’s Law 2014)|
|Virginia||Yes||No||Yes||No more than 5% THC; for “any diagnosed condition or disease determined by the practitioner to benefit from such use”|
|Wisconsin||Yes||No||Yes||Only permitted for certain conditions (2017)|
|Wyoming||Yes||No||Yes||No more than .3% THC; only permitted for drug-resistant epilepsy (2015)|
|District of Columbia||Yes||Yes||Yes|
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