Are CBD products legal to purchase?
The short answer to CBD product legality is yes, it is legal to purchase CBD products in the United States.
Background On CBD Legality
CBD or Cannabidiol is naturally occurring in hemp and does not have the intoxicating effect, similar to THC. Natural cannabinoids from hemp plants are specifically exempt from the CSA. Since naturally occurring cannabinoids are found in all industrial hemp products, CBD products made from hemp are the easiest legal way to get CBD. Products made from industrial hemp are found in retail stores nationwide, thanks to a federal exemption to the definition of “marijuana,” as explained below.
Industrial hemp can be grown for many uses. Six years ago, the statutory exclusion of industrial hemp stalk, fiber, sterilized seed, and seed oil from the scope of the Controlled Substances Act enabled individuals and businesses in the United States to legally import, purchase, use, and trade in sterilized industrial hemp seeds, oil, stalk and fiber, and products made from those exempt parts of the plant. Now, the United States has its own hemp cultivation, processing, and manufacturing centers all located within its borders. This means that legal CBD products can be made and purchased legally within the US.
The History of CBD Products Legality
In Hemp Indus. Ass’n. v. DEA, 357 F.3d 1012 (9th Cir. 2004), the Ninth Circuit ruled that naturally occurring cannabinoids in industrial hemp foods, including oil, were never scheduled under the CSA; therefore, the DEA has no jurisdiction. This means that CBD, and even THC when in industrial hemp oil, are legal.
When the Hemp Industries Association defended industrial hemp’s exempt status in Federal Court in 2004, the DEA declined to challenge this ruling, which is why there continues to be a wide variety of industrial hemp products on the market today. See Hemp Industries Association v. DEA, 357 F.3d 1012 (9th Cir. 2004). If the DEA really was trying to ban industrial hemp foods, it would have appealed; that did not occur. CBD producers and distributors can rely on this case, accordingly.
In this case, the Court concluded: “[a]s in the case of poppy seeds commonly consumed on bagels and expressly exempted from the CSA, that come from a non-drug variety of, but the same species as, the opium poppy…non-psychoactive hemp seed products do not contain any controlled substance as defined by the CSA…” 357 F.2d at 1017. The Court further found that “[t]he non-psychoactive hemp in…products is derived from the ‘mature stalks’ or is ‘oil and cake made from the seeds’ of the Cannabis plant, and therefore fits within the plainly stated exception to the CSA definition of marijuana. … Congress knew what it was doing and its intent to exclude nonpsychoactive hemp from regulation is entirely clear.” Id. at 1018.
Thus, it is clear that industrial hemp stalk, fiber, non-viable seed and oil, and products of any and all kinds made from those plant parts, have always been, and remain, lawful under the CSA. The DEA’s present position is that CBD is a schedule I controlled substance under the CSA. There are extensive procedures that must be followed in order to place a substance within any of the Schedules listed in the Controlled Substances Act, and that process has never been initiated with respect to CBD. That process would likely fail anyway because of the Ninth Circuit’s opinions in the Hemp Industries Association’s cases. Hemp Indus. Ass’n. v. DEA, 357 F.3d 1012 (9th Cir.); Hemp Indus. Ass’n v. DEA, 333 F.3d 1082 (9th Cir. 2003). These cases expressly exempt all naturally occurring cannabinoids from the CSA’s definition of marijuana; and this ruling even protects patients in non-legal states, since it is a federal decision. I seriously doubt that any prosecution under the CSA for industrial hemp derived CBD would survive a motion to dismiss. Thus, the DEA’s position is devoid of logic, and is unsupported by the law, as set forth herein.
Congress Passes Laws To Make CBD Products Legal
Congress’s intent to distinguish industrial hemp from marijuana, in 2014, through the Agricultural Act of 2014 (the “Farm Bill”), Congress authorized the cultivation of hemp pursuant to research pilot programs by institutions of higher education and/or state departments of agriculture.
Further evidencing Congress’ distinction between industrial hemp and marijuana, the 2014 omnibus spending bill effectively defunds law enforcement regulatory mechanisms against farmers, all falling within the “umbrella” of the state’s pilot program. Since then, other states continue to follow suit in implementing their own pilot programs.
In late October 2015, the United States District Court for the Northern District of California issued a scathing opinion against the DEA’s interpretation of the Spending Bill as it pertains to law enforcement resources deployed against state-compliant medical marijuana operations and use. See United State of America v. Marin Alliance for Medical Marijuana [MAMM], Case No. 98-00086 (2015). By the plain language of the Spending Bill, the DEA is forbidden from enforcing federal law against MAMM so long as MAMM was compliant with California state law. Id. In fact, the MAMM court noted the DEA’s “contrary reading so tortures the plain meaning of the [Spending Bill] that it must be quoted to ensure credible articulation.” By import of the MAMM analysis, the DEA is also precluded, under the Spending Bill, of deploying federal law enforcement resources against any lawful distribution of industrial hemp or CBD derived therefrom.
The 2018 Farm Bill goes a step further from the 2014 Farm Bill to give further protections for hemp cultivation and research. In short, the 2018 bill legalizes the hemp industry but it comes with restrictions.
CBD Product Legal Guide State By State
The following states and districts have medical marijuana laws and recreational marijuana laws. In these states, you can buy oil with THC and CBD. All Alpine Hemp products are legal for purchase in these states:
This next group of states has medical marijuana laws. In these states, CBD products’ legal status depends on the source whether it be from marijuana or hemp. Marijuana CBD products require a medical card while hemp CBD products are legal for purchase by everyone.
Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maryland, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and West Virginia
These next states have specialized laws for CBD oil containing higher levels of THC. Hemp-derived CBD products with under 0.3% THC are legal in all these states:
Have questions whether CBD products are legal in your state? Contact us