There’s a big problem regulators face with the cannabis plant — some of the compounds it produces are powerfully medicinal, while others make users high.
Over the years, it’s become harder to deny the benefits of cannabinoids in the cannabis plant, especially CBD. Thousands of scientific studies have been published highlighting either the benefits of CBD for a specific condition or defining its safety.
Not All Cannabis Products Are Created Equal
It wasn’t until recent years that marijuana regulation was revisited. The first changes were to support medicinal use and research. In 2014, then-President Barrack Obama passed the Agricultural Act of 2014. Section 7606 of the Act outlined the legal classification of hemp and allowed the use of industrial hemp for research purposes.
In this article, we’ll discuss what makes some sources of CBD legal, while others remain a Schedule I controlled substance.
Let’s explore this important distinction in more detail.
Under these jurisdictions, industrial hemp cultivated in compliant Farm Bill agricultural pilot programs is exempted from being classified as marijuana.
These places include California, South Dakota, Arizona, Alabama, Wyoming, West Virginia, South Dakota, Ohio, Nevada, Michigan, and West Virginia.
The U.S. Department of Agriculture (USDA) now regulates hemp in lieu of the DEA. Since hemp is federally legal now, you might assume that CBD, which comes from hemp, follows suit. But you should note that not all hemp extracts are offered this legal status.
Gray Area States
So, which one is marijuana, and which one is hemp? The answer to that isn’t that simple. Again, as we noted before, marijuana and hemp aren’t two plant varieties belonging to the same family. Instead, a Cannabis Sativa plant can either be marijuana or hemp. The difference comes in the THC percentage in the cannabis plant:
CBD is found in both marijuana and hemp varieties of cannabis plants. But there are also three different cannabis varieties:
These states have specific laws that allow retailers to sell hemp-derived industrial products.
The Farm Bill package encapsulates an extensive range of programs ranging from consumer protection to farmer subsidies. On a federal level, the 2018 Farm Bill legalized cultivating hemp plants containing 0.3% THC content.
Mamadou Ndiaye was facing jail time and a $1,000 fine for marijuana possession. But Ndiaye possessed only CBD oil – a substance that was legalized by the state legislature last month. Thanks to the new CBD law, the prosecutor and judge both decided to dismiss the case.
There are certainly CBD producers who source their hemp from cultivators that operate under the Farm Bill. But given how widespread these products are, it’s unlikely that all of them were sourced from research hemp. And state laws on CBD and hemp vary widely. Colorado, which legalized adult-use marijuana in 2012, has a robust industrial hemp program and is home to the first U.S.-bred certified hemp seed. But in Massachusetts, where you can now grow marijuana at home, it’s still a crime to grow hemp without a state license, reported The Boston Globe.
Meanwhile, the Drug Enforcement Administration maintains that CBD is definitely still illegal. Last November, a spokesperson for the agency explained to WTHR that those who violate federal drug laws still run the “risk of arrest and prosecution.” But he also said that the DEA is not going after individuals who have benefited from CBD oil.
Then, there’s HIA v. DEA – a lawsuit by a hemp trade association that challenges the agency’s classification of CBD as a Schedule I substance. Federal judges at the Ninth Circuit Court of Appeals heard oral arguments in the case earlier this year. Clearly, attorneys representing hemp businesses have a different interpretation of federal law than the DEA.
The 2014 Farm Bill is often cited as evidence that CBD derived from industrial hemp is now legal. But the legislation legalized only a very narrow set of hemp cultivation activities: It is legal to grow hemp under a state pilot program or for academic research. It is also legal to cultivate under state law “in which such institution of higher education or state department of agriculture is located and such research occurs.”