CBD’s Legal Landscape: The Good, the Bad, and the Unclear

Is CBD legal? In a word, yes. But CBD’s legality is more conditional than you might think. As cannabis legal expert Orion Inskip says, “it depends” - on who you ask, where the CBD is coming from, and a variety of other factors. We’ll look at some of them below.

Most CBD in America is obtained from the hemp plant. That’s good, from a legal perspective. On a basic level, hemp is legal if it falls below .3% THC by dry weight. Hemp that meets these qualifications is classified as Industrial Hemp. That means its processing into CBD is fully legal, thanks to 2014’s Federal Farm Bill.

While the Farm Bill did change a lot, it still clashes with older laws, holdovers from a time when cannabis found itself in the middle of a political smear campaign.

The Controlled Substances Act

The campaign against cannabis led to the plant’s prohibition in the 1930’s, and reached its height in 1971 with the passing of the Controlled Substances Act. The CSA classified marijuana (which included hemp as well as the high-THC stuff) as a schedule 1 controlled substance, with no acknowledged medical uses and high risk of addiction. These claims were pretty unfounded, but they became law nonetheless.

Things became a little brighter in the early 90’s with the discovery of the human Endocannabinoid System. [**could link to article 1] All of a sudden, scientists had a valid reason to study cannabis. CBD’s existence and importance came to light, and researchers realized that CBD could be separated from the plant’s more psychoactive compounds.

Soon enough, the FDA claimed oversight of CBD in its extracted, isolated form. The US government was also quick to begin researching plant cannabinoids, and even got a research patent on CBD in 2003.

Thus began a 10-year span where hemp was grown, and its CBD was sold, within an ever-changing legal gray area. Some companies resorted to importing hemp from Europe, specifically the Czech Republic. Others extracted CBD from hemp’s stalks, not its resinous flowers, hoping to stay far away from anything resembling THC. Several Indian nations even legalized hemp for themselves and began growing it, though they were met with resistance - and raids - from the DEA.

The Federal Farm Bill

In 2014, the first Federal Farm Bill was passed. Not only did this bill make industrial hemp and its derivatives legal, it also called for the development of hemp pilot programs for each State, encouraging farmers and institutions to grow and study the plant.  

Perhaps most significantly, the Farm Bill was passed alongside the Continuing Appropriations Act, which prohibited DEA and FDA interference of the Bill by defunding their operations against hemp. No longer could the DEA enforce their interpretation of hemp as an illegal controlled substance, and no longer could the FDA enforce their interpretation of hemp as a drug. CBD continues to be freely sold across the US, in spite of its tenuous legal landscape, thanks largely to the passing of these two 2014 laws.

Where We’re At Today

Another positive change came just recently, in the form of a revised and expanded 2018 Federal Farm Bill. Finalized this past December, the new Farm Bill makes provisions for more widespread cultivation of hemp, not just smaller-scale pilot programs. It also makes things easier for farmers and processors by allowing hemp to be transported across State lines.

The Farm Bill reaffirms the legality of hemp-derived CBD, and even permits any cannabinoid, including THC or CBN, to be extracted from the hemp plant, so long as the hemp is grown in accordance with the Bill to be under .3% THC.

Pharmaceutical companies have also contributed to CBD’s recent progression to legality. Epidiolex, a CBD-rich drug targeting epilepsy, pushed the DEA to reclassify CBD away from being a category 1 controlled substance. At the same time, the FDA has pulled this form of CBD firmly into the ‘drug’ category. In doing so they’ve allowed Epidiolex’s producer, GW Pharmaceuticals, to make medical claims regarding their CBD.

Whether this recent development is good or bad for non-pharmaceutical CBD remains to be seen. CBD’s normal status as a food supplement - not a drug - means that certain kinds of marketing are off the table. Medical terms like “heal” or “cure” are precluded; a disclaimer that CBD is “not intended to diagnose, treat, cure, or prevent any disease” is mandatory. CW Hemp even got fined several years ago for listing customer testimonials on their website!

That said, the future of CBD’s legal status still looks very hopeful. Public awareness of CBD’s health benefits continues to grow, and its medical status does, too. More States are growing hemp than ever before. As the CBD Industry continues to expand, the DEA really has been prevented, via defunding, from interfering with hemp commerce.

We at Legends are hopeful that the government will continue making laws that foster the CBD Industry’s safe expansion and foresee a future where CBD companies are given more freedom to source the highest quality hemp in order to make the highest quality products.