This article has been reviewed by a Criminal Defense Attorney, John R. Eyre, Esquire. As with anything you read on the internet, this article should not be considered legal advice.
Have you started to notice CBD everywhere you look? CBD is popping up all over your instagram feed, your friends are constantly talking about how much they love it, and your mom has even asked you about it.
You might find yourself wondering—are all those CBD products even legal? And if they’re legal in your state, are cannabis products legal everywhere?
Because of its frequent association with marijuana, CBD has developed a confusing and at times contradictory legal history in the United States. Additionally, people mistakenly believe that THC and CBD have many of the same effects. The guide below intends to clear up some of that confusion with up-to-date answers to frequently asked questions about its current state of legality across the country and explain the effects of CBD.
Why There’s So Much Confusion About CBD
CBD, short for cannabidiol, is a naturally occurring chemical compound from plants in the cannabis family. CBD is just one of more than a hundred different types of cannabinoids, the molecules produced uniquely by the cannabis plant. Unlike the cannabinoid THC, short for tetrahydrocannabinol, CBD is not psychoactive. This means that CBD does not cause the “high” associated with marijuana. Instead, CBD reportedly results in feelings of relaxation as well as other benefits.
CBD is present in both hemp and marijuana plants. There are three varieties of cannabis:
- Cannabis sativa
- Cannabis indica
- Cannabis ruderalis
So, which is hemp and which is marijuana? The answer isn’t as simple as it may seem. Hemp and marijuana are not two varieties of plants in the same family. Rather, a Cannabis sativa plant can be either hemp or marijuana. The difference comes down to the percentage of THC in the cannabis plant:
- Cannabis with 0.3% or less of THC content classifies as hemp
- Cannabis containing more than 0.3% of THC is considered marijuana
The often murky legal status of CBD stems largely from conflicting federal and state laws, recent changes in both, and the ongoing confusion and conflicts related to hemp and marijuana. So, is CBD legal? Let’s take a look.
How Hemp Became Legal
In 2018, Congress passed the Agriculture Improvement Act of 2018 (“Farm Bill”), which was then signed into law at the end of the year. In 2019, it went into effect, legalizing the hemp plant on a federal level when it contained less than 0.3% THC.
The Farm Bill:
- Removes hemp from the Controlled Substances Act
- Expands hemp's commercial cultivation
- Legalizes hemp production on Indian tribal land and in U.S. territories.
Hemp regulations now belong under the U.S. Department of Agriculture (USDA) instead of the Drug Enforcement Administration. Since hemp is now federally legal, most presume that CBD derived from hemp follows suit.
However, the regulations do not explicitly extend legal status to hemp extracts.
CBD is Not Yet Legal in All its Forms
The Farm Bill grants the Food and Drug Administration’s (FDA) the authority to regulate products containing cannabis or cannabis-derived compounds, including CBD, under the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act.
If a product is meant to be used as a drug, food, dietary supplement, or cosmetic, and that product is sold across state lines, then it is subject to FDA regulation.
The FDA is currently evaluating CBD's safety. For now, its stance is that products that add CBD to food or label CBD as a dietary supplement are not legal for interstate commerce.
What does that mean?
- CBD food products and supplements can be sold within their state or origin (if they are legal there!). If a company grows and harvests hemp in Colorado, it can sell CBD gummies made from that hemp in Colorado.
- CBD products explicitly labeled as a food or dietary supplement cannot be sold across state lines. Those Colorado made CBD gummies? They can’t be sold in California—unless the company gets creative with their labeling.
- Products labeled as “active hemp extract” can often bypass these regulations and sell throughout the 50 states.
- Products that are not marketed as foods or supplements with medicinal effects of CBD are exempt from these regulations.
The regulations are still developing on the federal level.
Can You Carry CBD on a Plane?
The TSA recently updated its policies to allow an FDA-approved marijuana-based drug as well as CBD products produced in line with the Farm Bill requirements. Now, passengers are permitted to bring CBD derived from hemp (that contains 0.3% or less of THC) as a carry-on.
Though technically allowed, exercise caution when traveling. Since most states do not yet have guidelines in place for testing products, your CBD product might contain more THC than advertised. If your CBD product happens to contain THC levels higher than 0.3%, TSA may call a law enforcement officer, although these situations are rare.
States Have Their Own Sets of Laws
As you'll see below, each state has its own sets of laws and policies around CBD cultivation, distribution, manufacturing, sales, and possession. To further complicate the legal landscape, many of these states' legislatures are reviewing proposed amendments to existing laws. In several instances, regulating agencies are still in the process of developing regulations and procedures related to CBD.
Overall, most states permit the use of CBD for some specific medical conditions. However, laws vary from state to state. In short:
- Most states define legal CBD as the extract from hemp
- The amount of THC allowed for a product to qualify as CBD can range from 0.3% to 0.0%.
- CBD is federally legal, but a few states still place full or partial restrictions on the purchase of CBD products.
Find out how your state classifies possession of CBD below. When CBD is mentioned, it is referring to products containing no more than 0.3% THC and are derived from industrial hemp.
Legal Status of CBD in Each State
Alabama’s Attorney General issued a Public Notice stating that CBD from hemp can be legally produced, sold, and possessed in the state.
The Alaska Department of Natural Resources (“DNR”), which has regulatory authority over industrial hemp, issued proposed industrial hemp rules. These rules will require retailers to register with DNR to sell hemp and hemp products.
CBD is legal.
CBD was removed from the state's list of controlled substances, and no license or permit is required by the state to sell or deliver CBD products.
California law does not currently provide any requirements for the manufacturing, processing, or selling of non-food industrial hemp or hemp products.
But the California Department of Public Health claims CBD is illegal in all foods, beverages, and some other products. A proposed new law (AB-228) would expand those allowable types of products.
CBD is clearly legal in this state, with food, beverages, lotions, and other products infused with CBD for sale in a variety of businesses.
It is legal to buy CBD and consume it.
CBD products have been legal in Delaware since 2014.
The Florida Department of Agriculture and Consumer Services (FDACS) has begun work on rulemaking for its commercial hemp regulations. CBD is legal, but currently unregulated.
Patients with certain medical conditions can possess "low THC oil" if they have a Low THC Oil Registry Card from the Department of Public Health. Only CBD with no more than 5% THC is legal.
The state's Department of Health issued a statement that no CBD products can be processed, distributed, or sold legally in Hawaii without a prescription.
While some CBD products may be legal, they must be completely free of THC, and can only be extracted from the stalks or seeds of mature hemp plants.
CBD is legal.
Laws in Indiana here allows you to buy, sell, and possess CBD products.
Medical marijuana dispensaries opened in December 2018, and state law says CBD products can only be sold with a dispensary license.
Law allows for the use and sale of CBD that contains no THC. CBD containing no more than 5 percent THC can be used to treat debilitating medical conditions.
You can legally grow, manufacture, and own CBD products.
While CBD is legal, state officials randomly test products to confirm they possess less than 0.3% CBD, which has dampened the industry in the state.
CBD is to be treated as a food rather than a medicine. Sales of CBD products are legal as long as no medical claims are made to promote the product.
CBD is legal. You will soon be able to buy topical CBD products at the local drug store.
The Massachusetts Department of Agricultural Resources released a policy statement that prohibits the sale of food containing CBD, CBD products that make medicinal claims, animal feed with hemp, and the sale of unprocessed or raw plant material to consumers. Legislation has been filed to reverse that policy.
CBD products are available and allowed in the state without need for a medical marijuana card.
The first dedicated CBD and hemp store opened in Minneapolis at the end of 2018.
The state restricts CBD use as a medical treatment. CBD hemp oil must be tested by the National Center for Natural Products Research and dispensed by the Department of Pharmacy Services at the University of Mississippi Medical Center.
Patients with epilepsy can apply for a hemp extract registration card to purchase CBD hemp oil from one of two state-licensed facilities.
While not expressly permitted, the state has no laws prohibiting or regulating CBD.
The Nebraska Hemp Farming Act exempts hemp and hemp products from the state’s controlled substances act. However, without any specific protections for the retail sale of CBD, there is concern that law enforcement actions against CBD products could continue.
Though CBD products are legal in the state, CBD as a food additive is not yet legal. Until the FDA approves its use in food and drinks, CBD-infused edible products will be considered illegal.
CBD is legal, unless added to food. The state Bureau of Public Health Protection issued an advisory warning to food establishments that CBD is not permitted in food under FDA guidelines.
CBD is legal.
In May 2019, a new law specifically authorized the sale of CBD and food products containing CBD.
CBD is legal. However, while CBD food and drinks are prevalent, their legal status is hazy as the state awaits new federal guidelines on CBD edibles.
The 2019 Farm Act legalized CBD products, with the exception of smokable hemp.
Hemp is still considered a controlled substance in the state constitution. However, if it is extracted from legally produced hemp and contains less than 0.3% THC, it is not illegal to possess.
CBD was legalized in the summer of 2019.
The state legislature approved the retail sale of CBD, becoming the first state to require CBD product labels to declare the country of origin and whether the cannabidiol is natural or synthetic.
To be legal, CBD products must be tested and certified by an Oregon lab.
While hemp-derived CBD is fine, anything made from marijuana has to go through the state’s medical marijuana system.
Low-THC CBD products are legally available throughout the state, and high-THC products are available at medical marijuana dispensaries.
While the sale and cultivation of hemp have been legal since 2017, the status of raw hemp is in limbo, as raids on stores continue.
The Attorney General released a statement in March 2019 saying that hemp and CBD are still illegal in South Dakota.
CBD oil that is less than 0.9 percent THC and "obtained legally in the United States and outside of" Tennessee has been legal since 2015. Both Walgreens and CVS plan to sell CBD in stores in the state.
Texas recently passed a hemp growth program that protects hemp products like CBD. It also includes labeling and retailer registration requirements. Law enforcement officials say that while CBD is legal, if it has even a trace amount of THC, then possessing it could result in a felony charge.
CBD has been legal since late 2018.
CBD is legal.
CBD is legal, unless it is added to foods. The Department of Agriculture and Consumer Services issued guidance that the state's food safety regulations prohibit the introduction in interstate commerce—of any food or dietary supplement containing CBD.
CBD is legal, unless it is added to foods.
You can legally buy CBD in West Virginia. The state recently enacted a law that modifies the state’s hemp licensing program to ensure the sale of CBD can continue in the state.
Any Wisconsin citizen can possess CBD oil, as long as their physician certifies it is being used to treat a medical condition.
State law now allows for the use and possession of hemp and hemp products, including CBD.
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NORML. Georgia CBD-Specific Marijuana Law. https://norml.org/legal/item/georgia-cbd-specific-marijuana-law
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New York Upstate. Is Edible CBD Legal in New York? https://www.newyorkupstate.com/news/2019/09/is-edible-cbd-legal-in-new-york-the-answer-is-no-but-its-still-a-bit-hazy.html
WITN. Final North Carolina farm bill sets smokable hemp ban date. https://www.witn.com/content/news/Final-North-Carolina-farm-bill-sets-smokable-hemp-ban-date-563968881.html
Greenville News. SC attorney general's opinion on raw hemp leaves Upstate CBD store owners confused, fearful. https://www.greenvilleonline.com/story/news/2019/07/29/confusion-swirls-following-sc-ag-alan-wilson-opinion-raw-hemp-cbd-store-raids/1805084001/
KOTA. Once and for all, is CBD oil legal in South Dakota? https://www.kotatv.com/content/news/For-once-and-for-all-is-CBD-oil-legal-in-South-Dakota-507631721.html
Texas Legislature Online. https://capitol.texas.gov/BillLookup/History.aspx?LegSess=86R&Bill=HB1325
KBTX. The complicated legality of CBD oil in Texas. https://www.kbtx.com/content/news/The-complicated-legality-of-CBD-oil-in-Texas-507799941.html
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