The legal status of cannabidiol (CBD) is one of the most misunderstood issues in the cannabis industry. A clear understanding of the current legal status of CBD can be helpful in predicting and interpreting the arc of its legal evolution.
Despite being relatively straightforward, the law is often misstated by news outlets, federal agencies, and non-governmental organizations. The primary cause of confusion is misuse of the word “cannabis.” In order to understand the legal status of CBD, it is necessary to understand the legal status of the various forms of cannabis. This is because CBD’s legal status is based on its source. This is the “Source Rule,” which I will discuss in more detail in this article.
The terms “cannabis,” “hemp” and “marijuana” all have different legal meanings and significance. “Cannabis” is a scientific and botanical term that has no formal legal definition or legal significance. It refers to Cannabis sativa L (Cannabis), a genus of flowering plants in the family Cannabaceae. From a legal standpoint, the word “cannabis” can describe a legal plant (industrial hemp) or an illegal one (marijuana).
From the description on their YouTube channel:
CBD is short for Cannabidiol, a molecular compound that is a botanical extract of the industrial Hemp plant. Hemp is legally identified as a strain of cannabis that has 0.3% or less of THC. Hemp products are legal in all 50 states.
What is the EndoCannabinoid system? All mammals have an Endocannabinoid System. Much like the circulatory or respiratory system, the EndoCannabinoid System makes and regulates the Endo-Cannabinoids made by our bodies.
The cannabis plant has the highest concentration of Cannabinoids of any plant on our fine planet. In short, Cannabinoids promote cellular homeostasis, and are ESSENTIAL to the human diet. It has been shown that a host of neurological, inflammatory, and autoimmune conditions are linked to cannabinoid deficiency.
Do your research on what cbd is and draw your own conclusions. Let the third party testing and testimonials speak for themselves.
Industrial hemp is a particular type of Cannabis that is lawful. Pursuant to 7 U.S. Code § 5940, often referred to as “Section 7606” after the section in the bill that eventually became the 2014 Farm Act, industrial hemp is exempt from the federal Controlled Substance Act (CSA) when it is grown pursuant to a state pilot program and does not contain concentrations of delta-9 tetrahydrocannabinol (THC) that exceed 0.3%. Additionally, Congress has further protected industrial hemp by enacting several consecutive appropriations acts, including the current one, that prohibit the use of federal funds to interfere with the “transportation, processing, sale, or use of industrial hemp … within or outside the State in which the industrial hemp is grown or cultivated.”
[Image: Evan Anderson]
CBD derived from industrial hemp is legal under federal law and the laws of most states; however, CBD derived from marijuana is illegal. CBD is not included in the list of controlled substances under the CSA or the equivalent statutes of most states. It is controlled (which, for our purposes here, means “illegal”) only when derived from marijuana. This is because marijuana is a controlled substance, and its definition includes “all parts” of the Cannabis plant except for the fibers of the mature stalks and non-germinating seeds. For this reason it is a true statement that chlorophyll is a controlled substance when derived from marijuana. In fact, CBD and chlorophyll share the same legal status under the CSA.
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.”
CBD’s legal status is about to become much less complicated, at least with respect to the CSA. The 2018 federal Farm Bill, which is likely to be enacted this Fall, explicitly states that cannabinoids derived from hemp, including CBD, are lawful. In effect, the 2018 Farm Bill codifies the Source Rule by specifically articulating that CBD from hemp is lawful. Although that is the case now, the 2018 Farm Bill clarifies in a single statutory provision what currently takes a short article (or a legal brief) to articulate. Additionally, the 2018 Farm Bill will eliminate the issue of state by state legality by making hemp and CBD derived from it legal across the country in all 50 states.
The legal status of CBD under the Food, Drug & Cosmetic Act, which is policed by the FDA, is another matter entirely. The FDA recently approved Epidiolex, a patented medication containing CBD derived from marijuana. The FDA recently recommended that it be removed from the CSA schedules entirely. The DEA rescheduled it to Schedule V (the least restrictive).
How the FDA will regulate CBD is anyone’s guess.
The next several months promise continual evolution of CBD’s legal status. Although the analysis provided in this article will soon be outdated in its particulars, the underlying legal concepts are likely to hold, albeit in different contexts.
Cannabis Attorney, Contributor
Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.
His articles are republished on CarolinaCannabisNews.com with permission. They originally appear on his blog Kight on Cannabis.