Is CBD legal? The Answer is Yes, Of Course, but There Are Plenty of Exceptions

You’ve almost certainly noticed it: CBD is everywhere. After all, according to survey data, nearly 15% of America has tried the newly legalized compound. CBD’s popularity flows from numerous studies that have shown it to have the potential to help address dozens of physical and emotional challenges, including pain relief, insomnia, weight gain and more.

However, the true source of the recent CBD boom was the passage of the 2018 Farm Bill, which essentially legalized CBD in the United States.

However, there are plenty of exceptions and qualifications to CBD’s legal status, and while the compound may be legal for sale, retailers and manufacturers have to process and market the compound under a very specific set of guidelines.

Here’s a comprehensive look at the current legal issues facing CBD.

The 2018 Farm Bill

The 2018 Farm Bill was a massive, omnibus bill that dealt with a wide array of farming-related provisions. However, tucked into that bill was a change that would have a massive impact on the CBD and cannabis industry. Specifically, the farm bill did the following:

• Allowed for hemp cultivation and processing.
• Allowed for hemp to be transferred across state lines.
• Removed any restrictions on the processing or sale of hemp, as long as that work occurred within the already existing legal framework.
• Allowed for hemp farmers to be protected under the Federal Crop Insurance Act.
• Removes CBD from the Schedule 1 list of restricted drugs, thus allowing for it to be processed and sold in the United States, provided that the hemp used in the processing of the CBD is consistent with all existing federal laws.

Previously Existing Federal Law

The 2018 Farm Bill had the effect of massively expanding the legal framework regarding hemp within the United States and formally legalizing the sale and processing of CBD. The current legal state surrounding hemp was actually relatively well established. Current laws make many stipulations, including:

• All hemp and cannabis produced must contain less than .3% THC (or tetrahydrocannabinol, which is the intoxicating agent found in marijuana).
• In order to grow hemp, state Departments of Agriculture must work with other members of their state’s executive branch to create a regulatory plan which would monitor the cultivation and processing of hemp. Hemp processing can begin once the United States Department of Agriculture approves of the plan.

Within each of these regulations is a relatively robust inspection and monitoring system that must be established. However, within these broad regulations, they can cultivate, process and tax hemp however they choose to do so.

FDA Regulations

The United States Food & Drug Administration is responsible for regulating the release and marketing of foods, drinks, and medicine in the United States. As such, much of the regulation regarding CBD has fallen to that agency.

Unfortunately, the FDA is notoriously slow. Sometimes, they take years to allow for medicines to become available for prescription or to produce the regulations necessary to allow for drugs to be marketed and promoted. Thus far, this is the case with CBD.

In a November 2019 update on their website, the FDA discussed their latest understanding of available research when it came to CBD. The update was a very cautious and negative one. The FDA noted the following:

• Some studies have shown that CBD has the potential to cause liver damage or affect how other drugs are metabolized.
• CBD can cause side effects.
• Many questions remain about CBD, including long-term impacts, impacts on children or breastfeeding/pregnant mothers and impact on male reproduction.

The FDA also noted that some unscrupulous marketers were straight-out lying about CBD, making medical claims about its ability to cure patients of a variety of ills. To be clear, this is not the case. While many scientific studies have noted that CBD may have a variety of positive impacts, those claims have yet to be proven to a point that the FDA has endorsed them. Furthermore, at the moment, prescription-strength cannabis is only available for the treatment of two rare seizure disorders. That is available in the medicine Epidolex.

However, that hasn’t stopped certain companies from making claims about CBD’s alleged medicinal properties. The FDA has come down hard on these companies, issuing cease and desist letters to vendors who try and claim that CBD can cure anyone of any number of conditions.

Unfortunately, what was missing from this update was further action and clarification about what is legal and what isn’t. The FDA promised that future regulations will be available in the future, but failed to provide a timeline on when that will happen. Thus, at the moment, save for marketing about medical claims, the FDA is not taking any enforcement action when it comes to labeling, testing or quality assurance about CBD. This, unfortunately, leaves customers vulnerable to badly produced products.

State Regulations

The vast majority of states have chosen to either follow federal guidelines and allow for CBD to be sold. Some states have also added their own regulations when it comes to testing and labeling. For example, state authorities in Florida have set up rules and regulations regarding labeling, pesticide use, and inspections. In California, the state is considering a major piece of legislation that would change a variety of aspects of CBD sales and marketing, including who can sell CBD, labeling requirements, regulations on hemp food manufacturers and more.

Three states, however, have taken the opposite approach and flat-out banned CBD or severely limited its use. These include:

• Idaho (the only type of CBD which is legally available is Broad Spectrum)
• Nebraska (where recent changes created a degree of confusion over CBD’s legal status)
• South Dakota

An Evolving Legal Scene

As is likely very apparent, the laws related to CBD and cannabis are rapidly changing, creating a degree of confusion over CBD. What’s the biggest thing for CBD users to take away? If you are consuming legally produced CBD within the United States and can confirm that the CBD has legal limits of THC (which is available via the company’s Certificate of Analysis), you’re probably just fine. Keep an eye out for more changes in the future, because these changes are surely coming!