Is CBD Even Legal Where You Live?
Though CBD oil made from industrial hemp—that is, oil with 0.3 percent or less of the psychoactive compound THC—may be federally legal now, thanks to the 2018 Farm Bill, that doesn’t mean it’s easy to make or find throughout the country. In fact, all 50 states and Washington, D.C., have different laws on the books, and different paths to changing them. As a result, it’s perfectly reasonable to worry whether the tincture you bought at the health food store is actually contraband.
Unless a person lives in one of the ten states and D.C. where marijuana is broadly legal (medicinally and recreationally), there’s a chance local authorities will treat CBD like the demon weed of Reefer Madness, rather than a promising (albeit not FDA-approved) health supplement. But the patchwork nature of each state’s regulations shouldn’t cause a migraine. Public support for legal cannabis has been increasing for years, and CBD’s high profile and federal legality makes prosecution less likely.
Even so, the legal situation is hazy enough that it’s important to exercise caution and common sense when shopping for CBD products. If you know already suspect there would be tough consequences for getting caught with a joint in a particular state, then do some research before making any big CBD purchases.
Below, we’ve mapped a general outline of where state laws stand right now, ranked from least to most CBD-friendly. Take it as a guide, but remember that the legality of CBD is ever-evolving (in fact, the FDA has scheduled a hearing about the substance for May), so things could look very different in just a year.
This is a bad state to drive through if you loaded up on tinctures and edibles in Washington or Oregon. Anything with any amount of THC in it is illegal here, and legislators just brought state law in line with the 2018 Farm Bill in March, meaning police officers might not be as caught up on CBD’s status as in friendlier states—and that could lead to problems for you.
Even so, business owners are moving forward: One Pocatello wedding and event store owner became the public face of CBD sales when police investigated her last Fall for selling CBD oil with .0175% THC. As of January, she was advertising hemp products again.
CBD oil is still considered marijuana here, and law enforcement has been hostile to businesses selling it, even after the Farm Bill passed. There is a bill to legalize medical marijuana working its way through the state government, but that won’t make it easier to buy CBD in Nebraska. Despite what the State Attorney General says publicly, CBD shops do operate in urban areas—the substance is already popular enough to get a trend piece in Omaha magazine.
SD is one of the worst places to be caught with marijuana, and state officials want to keep CBD out of reach as well. Governor Kristi Noem said it should stay illegal despite federal law, and while there is a debate over the future of cannabis law in the state, the Attorney General released a statement in March 2019 saying that hemp and CBD are still illegal. Proceed with extreme caution whether buying, selling, or simply possessing.
The Legal Limit Of THC In Hemp And The Fight To Change It
Cannabis has been known by many names throughout history, which makes sense considering that it develops completely differently in warmer climates than it does in colder ones. As a result, some cannabis varieties have more or less flowering, longer or shorter stalks, and yes–more or less THC. But despite the differences in appearance, use, and even genetics, scientists confirm that cannabis consists of only species–Cannabis Sativa.
It wasn’t until the 1970’s, after cannabis was legally banned, that researchers made an effort to separate the various subtypes into nominally separate species. This was the birth of “hemp” as we define it today.
An arbitrary definition for hemp vs. cannabis
In 1973, Canadian researcher Ernest Small and his partner Arthur Cronquist needed a benchmark to separate hemp from Cannabis for their taxonomy study . They chose THC content as the marker and arbitrarily decided .03% would be the cutoff between the two.
Years later, Small stated in an interview that he and Cronquist never intended .3 to be a method of legal standardization. He indicated it was only meant to separate the subtypes for research purposes. But the intention didn’t matter.
When it was time to legally define the difference between industrial hemp and “cannabis,” the illicit plant listed in the Controlled Substance Act of 1970, U.S. lawmakers opted to use Small’s .3% THC benchmark.
Richard Rose, a veteran of the hemp foods industry for 25 years, discussed the topic of defining hemp in an article for Hemp Grower magazine, In it he says, “Thailand…mandates that cannabis containing 0-3-percent THC is classified as hemp; 3-9-percent THC is classified as adult-use, and any marijuana products greater than 9-percent THC are classified as medical and therefore more tightly regulated.” Rose also notes the UN defines hemp as “CBD:THC ratio >1.”
On the other end of the spectrum, EU regulators opted for a stricter limit of .2% THC.
Why limit THC to 0.3% for hemp in the U.S.?
The vast differences in definitions means the .3% rule has no foundation in science, nor is it based on a globally recognized standard. But it’s where the U.S Farm Bill and the United States Department of Agriculture (USDA) stands today.
Presumably, congress established these rules to prevent farmers from planting hemp and accidentally (or purposely) harvesting psychoactive cannabis instead. But farmers are suffering as a result. Due to the variability of the plant and its sensitivity to increased heat and humidity, growers struggle to find strains that maintain the expected threshold.
The issue with limiting hemp to 0.3% THC
The issue is THC content often rises above .3% during flowering. Then naturally decreases as the plant continues to grow. But it doesn’t always decline below the limit and it can be difficult to determine whether the harvested crop is compliant until it’s too late.
The difference between passing as legal hemp and testing above the limit sometimes rests on the exact time of harvest. Moreover, even after harvest, the cannabinoid content can change if the plant is exposed to excessive heat during storage.
Hemp contains a compound known as THCA, which is the acidic precursor to THC. When exposed to warm conditions, THCA converts to THC, which can transform a formerly compliant crop into an illegal one overnight. And the proposed penalty for such transgressions is severe.
Under the USDA’s Interim Final Rules for hemp cultivation, if a sample tests above 0.3% THC–adjusted for a “Measurement of Uncertainty”–the producer cannot sell the crop and it must be destroyed at his or her own expense. Moreover, current Crop Insurance does not cover farmers for this occurrence.
The hemp industry’s fight to raise the limit
So how do we fix this problem? Some say genetic testing would help. But such procedures are expensive. They’re also inadequate due to the fact that many “hemp” plants are actually Cannabis sativa varieties bred to have low-THC and high CBD content.
Fortunately, the USDA issued a temporary delay in February regarding enforcement of this rule. That means hemp producers are not required to dispose of hot hemp through the DEA or another law enforcement body until the department finalizes its rules in October.
Until then, farmers, lawmakers and activists are fighting to raise the .3% threshold to a more feasible limit. They propose a .5% to a 1% cap, which is in line with countries like Switzerland, and Western Australia. They say this would reduce the risk of dramatic financial loss to farmers and ensure healthy growth of the market.
In response, the USDA has not budged on its stance, citing legal limitations from the 2018 Farm Bill. In fact, the USDA’s own Agricultural Marketing Service Bruce Summers indicated any changes to these rules would require legislative action. That means congress must amend the Farm Bill before the USDA will change its rules.
As the fight continues, opponents of the .3% limit are lobbying the U.S. government for change.
ACS is tracking the THC-limit debate in real time. Check back often and jump to the section below for updates as the story develops.
Updates on the fight
Vote Hemp Petition:
In the U.S., Vote Hemp President, Eric Steenstra, is fighting to raise the .3% THC threshold. Mr. Steenstra says a limit of 1% would result in very few crops being destroyed and provide valuable time while the industry works on developing more stable varieties. His group is circulating a petition to do just that. Vote Hemp is seeking as many signatures as possible in the next month to support the fight. You can find the petition here .
ACS Laboratory’s testing panel and protocol is compliant with Florida’s Hemp Program. ACS meets federal requirements by testing to the standards of Florida, the strictest state. The compliance panel consists of: Cannabinoid Potency, Pesticides, Residual Solvents (unless its flower), heavy metals, mycotoxins, moisture, microbiology. Contact ACS today.
Is CBD Oil Legal in 2019? State-By-State and Future Legality
CBD oil has exploded in popularity lately. Where is it legal, what are the exceptions and what is the future of its federal legality?
As the push for legal medical marijuana turned into one of the more universally popular stances in the country, advocates have been pushing for more states to legalize cannabis entirely.
While only 9 states currently have legalized recreational marijuana, as an industry weed has had a huge year of growth. This is in large part due to the increasing popularity of products that contain CBD in them. CBD, short for cannabidiol, is one of the hundreds of compounds found in the cannabis plant, and the potential it has shown in helping with pain, seizures and anxiety have made it a natural fit for medical and recreational weed alike.
The most commonly used form of CBD is CBD oil. Combining CBD extract with a carrier oil like coconut oil, it can be ingested or vaped, bringing a lot of variety. But because marijuana legalization is in such a murky situation with both federal and state laws to grapple with, CBD oil's legality can be hard to parse depending on where you are. Let's start with legality at the federal level.
Is CBD Oil Legal Federally in 2019?
Despite the many states that have legalized some or all forms of marijuana, federally the U.S. Drug Enforcement Administration (DEA) continues to classify CBD as a Schedule I drug. Schedule I drugs are defined by the DEA as "drugs with no currently accepted medical use and a high potential for abuse." This is how not just CBD, but the entire cannabis plant is classified.
Of course, because legal marijuana is in such a confusing transitional period, even here there are potential exceptions. The U.S. Food and Drug Administration (FDA) approved Epidiolex, a treatment for a rare form of pediatric epilepsy that contains CBD. The DEA decided to classify this as a Schedule 5 drug, the scheduling that indicates the lowest potential for addiction and abuse.
Hemp producers who sell CBD products will often use the 2014 Farm Bill to claim that it is legal. This bill includes a provision that allows for the legal cultivation of hemp provided it is used for academic agricultural research or under a state pilot program. But there is still confusion about whether the legal allowance for cultivation also includes selling it.
The DEA hasn't made going after CBD users a priority, but generally federally it remains illegal. You'll have to go on a state-by-state level to see if CBD oil is legal where you are.
Which States Allow CBD Oil?
The push for legal cannabis has made enough progress that now there are only three states where marijuana of any sort in any form continues to be completely illegal. Those states are Idaho, Nebraska and South Dakota. If you don't live in these states, you may be able to acquire legal CBD oil.
But each state has its own specifics you need to be aware of. Let's break them down.
States Where Marijuana Is Fully Legal
Currently, there are 10 states in America where marijuana is legalized both medically and recreationally. This does not count Washington D.C., which also has full legalization.
These 10 states with legal cannabis are:
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Michigan is the most recent state to legalize marijuana after state voters easily voted for the ballot initiative in the 2018 midterm elections.
In these states (and D.C.), simply go to a dispensary and you will be able to purchase CBD oil legally – provided you are 18 or over.
States Where Medical Marijuana Is Legal
In addition to the states with legal recreational weed, there are 23 other states where it is legal but only at a medical level. Those 23 states are:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Dakota
- Rhode Island
- West Virginia
The most recent of these states to legalize medical marijuana were Missouri and Utah, who like Michigan voted to pass it in the 2018 midterms. Oklahoma also voted to legalize medical marijuana earlier in 2018.
Whereas Michigan already had medical weed legalized to make for a quicker route to starting full legislation, these states don't yet have an operational system in place. North Dakota and West Virginia also still are not operational yet, nor in Louisiana or Arkansas. Ohio is also behind schedule, having been unable to meet their goal of having operational dispensaries two years after voting for legalization. And until those are operational, the Ohio Board of Pharmacy ruled that any CBD products not sold in dispensaries licensed by the state's program are illegal.
While in all of these states recreational marijuana remains illegal, Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio and Rhode Island have all decriminalized the drug. In these states, having smaller amounts of marijuana on you won't lead to an arrest or a criminal record. The maximum amount you're allowed to have on your person will vary by state.
In these states, you'll need to talk with your doctor and see if you have an ailment that qualifies under state law for medical marijuana use, then get your medical marijuana card.
States Where Only CBD Oil Is Legal
That's a whopping 33 states where, operational or otherwise, some form of marijuana is now legal. Add those up with the 3 states where it is completely illegal, and you're left with 13 states.
The laws in these 14 states can vary widely, but to differing degrees, medical cannabidiol can be allowed for legal use there. Many of these states have very strict rules for who can and cannot get approved for CBD based on what medical condition they have the severity of it.
Here are the 14 states with some form of legal medical CBD and what the requirements are, per the National Organization for the Reform of Marijuana Laws (NORML):
- In Alabama, the only access to legal CBD is either by being part of a state-sponsored clinical trial, or having a debilitating medical condition for which they are currently under treatment. The access via debilitating medical conditions is also known as Leni's Law.
- In Georgia, CBD oil can legally be prescribed to patients with over a dozen medical conditions, including cancer, multiple sclerosis, Parkinson's disease and seizure disorders. The legal limit a patient can have is 20 ounces of marijuana oil with no more than 5% THC, and the CBD amount must be equal to or greater than the THC.
- Earlier in 2018, Indiana passed a law that made it legal to manufacture, sell in retail, possess and use CBD oil provided it had no more than 0.3% THC content in it. This was a major expansion of the legality of CBD, no longer requiring Indiana citizens to be on a patient registry to buy CBD oil.
- The Department of Public Health in Iowa allows for limited amounts of CBD oil for patients suffering from several medical conditions. This includes HIV/AIDS, cancer, ALS and seizures. Five dispensaries opened very recently in Iowa. This oil can be found in creams, capsules and more.
- In 2018, Kansas passed a law that exempted CBD products from the state's criminal code regarding marijuana. This allows for adults to legally purchase and possess CBD products as long as they contain 0% THC.
- Kentucky has laws that allow for state-sponsored cultivation of hemp, which can be used to make CBD oil.
- Mississippi made it legal for patients with severe epilepsy to use products high in CBD as long as they were low in THC in 2014. The cannabis extract must have more than 15% CBD, but no more than 0.5% THC, and must be done by or under the supervision of a licensed physician.
- The law in North Carolina also only makes CBD legal for patients with intractable epilepsy. The CBD for this is made from hemp extract.
- South Carolina legalized CBD for those suffering from severe epilepsy disorders (including Dravet Syndrome, the condition Epidiolex was created to treat). The cannabis extract for must have extremely trace amounts of THC.
- The state of Tennessee considers CBD made from hemp extract, not marijuana, to be legal. CBD is also able to be prescribed to patients with intractable epilepsy if it contains trace amounts (no more than nine-tenths of one percent) of THC
- The CBD law in Texas also makes an exception for intractable epilepsy patients. This went into law in 2015, and the extract must contain over 10% CBD and no more than 0.5% THC.
- Virginia recently expanded legal CBD use when Governor Ralph Northram signed into law a bill that legalized CBD oil for any condition diagnosed by a licensed doctor or practitioner.
- CBD has been legal as a treatment for seizure disorders in Wisconsin since 2014, and in 2017 the Senate expanded its legality to be used as treatment for any medical condition a doctor recommended it for.
- Wyoming has a particularly narrow law for CBD oil. It is only legal for patients with epilepsy that has not responded to other treatments. Neurologists have to give the state's Department of Health a statement about how the patient needs and would benefit from the CBD, made from hemp extract, and then the patient may be able to receive a card that allows them to receive cannabis with high concentrations of CBD and trace amounts of THC.
What Would the 2018 Farm Bill Do for CBD Legality?
In 2018, the Senate introduced a new Farm Bill to update laws around the previous one. One important part of that bill, should it pass, is that it would legalize hemp on a federal level.
Hemp being federally legal would be huge for the CBD industry, as CBD oil made from hemp extract (a plant that has very low amounts of THC) would be legal. A new, more available form of CBD would also allow for more research on the subject of cannabidiol, and perhaps the entire marijuana plant. More research brings the potential of coming closer to full legalization.