Yes, the possession and consumption of CBD is legal but it depends on where it comes from. This is where the difference between hemp and cannabis comes in – the distinction is nothing more than a legal one. Cannabis itself is a genus of flowering plant – in other words the scientific name for the plant. Traditional cannabis – pot, weed, marijuana, whatever you want to call it – is typically bred for high THC content which provides the psychoactive effects. Alternatively, hemp is bred and grown for the industrial use of fiber and seed, which is why hemp must legally contain below 0.3% THC – so that it stays below the threshold of inducing psychoactivity.

The Answer: CBD is legal as long as it is derived from hemp which is non-psychoactive and by definition, contains less than 0.3% THC.

If the CBD is derived from traditional cannabis (that tests above 0.3% THC), then it is not federally legal – even if your state has approved CBD programs in place. Does this mean you’ll get in trouble? No, especially not if you’re complying with the CBD legislation in your state – 44 of 50 states have legal CBD programs in place.

If the CBD is derived from industrial hemp (that tests below 0.3% THC), then it is federally legal for you to possess and consume the product. This is why it’s so important to know where the starting material is sourced when purchasing CBD products. This distinction is also why hemp-derived CBD is legal to ship to all 50 states – even stores like Whole Foods have begun stocking the stuff.

Why All the Confusion?

In short, there have been contradictory rulings, legislation, and statements made from various government organizations. In 2014, President Obama signed the Farm Bill of 2013 into law. Section 7606 of the act defines industrial hemp as distinct from marijuana and authorizes the cultivation of hemp for industrial and research purposes. This made it pretty clear that the cultivation of industrial hemp in the United States was and is legal. Although, the bill never addressed CBD specifically.  This bill was later reaffirmed by the 2018 Farm Bill, which was signed into law by President Trump and defined industrial hemp as an agricultural commodity distinct from marijuana with the full legal status of such a commodity.

Two years after the original law, in 2016, the DEA published a rule stating that all cannabis extracts, including CBD, are considered Schedule I substances. The rule stirred confusion regarding its application to CBD derived from hemp. Businesses and consumers demanded answers and it was challenged in court almost immediately. The businesses argued that the rule skirted established federal process – only Congress has the authority to create a statute.

Ultimately DEA spokesperson Russ Baer was forced to clarify: “If the products are derived from the non-psychoactive part of the marijuana plant, then you’re talking a non-controlled substance.”

Like many of the issues surrounding the cannabis industry, there is conflict regarding CBD legality at both the state and federal levels. But one thing is clear, the DEA’s 2016 rule was meant to target commercial business selling these products, not the end-consumers. Essentially as long as there are legitimate businesses selling tested CBD products that ensure safety and legality, you as the consumer have nothing to worry about.

A Quick Note About CBD & Drug Testing

If drug testing is a part of the conditions of your employment, you might be concerned about the potential of CBD to cause you to test positive for THC. This isn’t an unfounded concern — however, there isn’t exactly a cut-and-dry way to answer it.

Much of the data we have about CBD is anecdotal, and its potential impact on drug testing is no exception.  There are very few peer-reviewed studies on the subject, but there appears to be a small risk of a false positive for some users. Avoiding full-spectrum products containing traces of THC can reduce your risk of a false positive, but that may not eliminate the risk entirely.

If you are concerned about passing a drug test, you should consider this potential risk when deciding whether CBD is right for you. To learn more about the science of CBD and drug testing, check out our article for a more thorough discussion of how to minimize your risk of a false positive.

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