Is CBD Legal in All States?

By Kellie Pantekoek, Esq. on January 15, 2020

You've noticed the buzz — CBD products are everywhere and advocates claim they help treat everything from anxiety to Alzheimer's. But is CBD legal in every state? The answer is a lot more complicated than you would think.

Even if you are seeing CBD advertisements in the windows of local gas stations and smoke shops, sales could still be against the law in your state. And, while we have the luxury in America of assuming that goods sold on the marketplace are safe and accurately labeled, this isn't yet true for the booming CBD market.

CBD vs. Marijuana

First, let's start with an explanation of what CBD is — and isn't. CBD, or cannabidiol, is a chemical compound that is found in hemp, a member of the cannabis family.

As you know, marijuana is also a member of the cannabis family. In fact, marijuana and hemp come from the same plant: cannabis sativa. However, the two terms are used to describe two different uses of the plant. That's where the complications stem from.

CBD is a cannabinoid like THC, the primary psychoactive element in marijuana, but CBD doesn't have the same psychoactive affect as THC. Therefore, pure CBD doesn't cause the "high" that is often associated with marijuana.

The powers that be have decided that cannabis with 0.3 percent or less of THC is considered hemp, while cannabis with more than 0.3 percent of THC is considered marijuana. If only it were that simple.

CBD Could Still Be Illegal

Federal law still considers marijuana illegal, classified as a schedule 1 drug by the Drug Enforcement Administration (DEA). But Congress removed hemp as a controlled substance with the passage of the Agriculture Improvement Act of 2018 (the "Farm Bill").

That should mean CBD products are perfectly legal, right? Nope. There are a few reasons why not.

1. While hemp is no longer a banned substance, the Farm Bill gave the FDA authority to regulate hemp products, and the FDA is still evaluating CBD's safety. As of now, the FDA has only approved one CBD health product, dietary supplement, or food item, and that is the drug Epidiolex, which is used to treat epilepsy.

Because the FDA is not yet on top of regulating the industry, low-quality and tainted products are all over the market, industry experts warn.

2. All 50 states have their own laws regulating the possession of CBD, and not all states permit CBD use without a prescription. Therefore, it's essential to research your own state's laws on CBD products.

3. Complicating matters further is the fact that hemp plants (which don't produce THC) can turn into marijuana plants (which do produce THC) thanks to pollination. Read more on the science behind the phenomenon here.

Consequently, a product that you think is CBD could be considered federally illegal if it contains more than 0.3 percent THC. While the DEA has specifically said it doesn't target individuals for these kinds of offenses, it is important to know if your employer randomly drug tests for THC.

Will the Future Offer More Clarity?

It isn't likely that the haze around the legality of CBD products will last much longer. The FDA, in particular, is facing serious pressure to figure out how to regulate the budding industry. And with the cannabis industry expected to reach $80 billion in U.S. sales alone by 2030, the government has no choice but to catch up.

In the meantime, if you decide to get in on the craze, experts suggest asking vendors how their CBD extracts were made and if they were tested by a third-party that validates their purity. And don't forget to check your state's laws.​

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