Is CBD Legal in All 50 States?

Woman holding cbd tincture

Posted on July 13th, 2020

It’s hard not to hear about CBD right now. Whether it’s on TV, an ad popping up in your Instagram feed, or your friends talking about it, cannabidiol CBD is everywhere. And for good reason: many of those ads you see or conversations you hear will tout CBD as an all-natural solution for insomnia, stress, aches, and so much more. And this plant-based product comes in so many forms, making it easy to consume and simple to purchase. But with so much information and wide-spread availability, you may wonder whether all CBD products are legal. And if so, are they legal in your state? And what about the rest of the United States, is CBD legal in all 50 states?

Now, we’re not surprised about your confusion. CBD is a cannabinoid extracted from cannabis plants. And marijuana, which is a federally-controlled substance, is also a member of the cannabis family. So, it’s easy to get confused about CBD’s legality.  But here’s the thing: CBD is just one of hundreds of cannabinoids concentrated in cannabis plants. Tetrahydrocannabinol (THC) is another. In fact, THC is the cannabinoid responsible for that euphoric high you experience with marijuana products. 

Unfortunately, many people assume that CBD and THC have similar effects since they both belong to the cannabis family. This is not, however, the case. And you can begin to understand the differences by learning more about the variety of plant strains within the cannabis family. 

Hemp plant on tan textured backgroundWhat’s the Difference Between Hemp and Marijuana Plants? 

The Cannabis Sativa plant encompasses many different varieties, but the two you’re most likely to hear about are marijuana and hemp plants. While very different in structure, hemp plants are bred for low THC and high CBD concentrations. In contrast, marijuana plants are cultivated for their opposite balance. 

In spite of their differences, hemp and marijuana plants spent years being lumped together. In fact, before the Agriculture Improvement Act of 2018, hemp had been illegal in the United States since the 1930s. So how did its legal status get so complicated? Here’s an overview of the history of cannabis in the United States.

Pre-20th Century: For centuries, hemp was among the oldest cultivated American crops, grown by the indigenous peoples and later European colonists. Hemp’s durable fibers were used for rope, cloth, paper, and more.

Early 20th Century: In the early 1900s, increased Mexican immigration to America introduced marijuana to locals, as they used it for calming and medicinal benefits. But the THC in marijuana produced psychoactive effects and, due to public health concerns, politics, and prejudice, all cannabis products, including hemp, became suspect. 

1937: The Marihuana Tax Act of 1937 was passed, banning the cultivation of marijuana and hemp in the United States, despite their varying effects and uses.

1970: The Marihuana Tax Act was replaced with the Controlled Substances Act of 1970, which classified cannabis as a Schedule I controlled substance. It was defined to have no acceptable medical purpose, with a high potential for abuse.

1990s-2010s: Cannabis supporters push to reclassify hemp and marijuana, based on their medicinal purposes. In 1996, California becomes the first state to legalize marijuana for medical purposes.

2014: The 2014 Farm Bill builds a framework for Hemp Programs, permitting farmers to grow industrial hemp without a Drug Enforcement Administration (DEA) issued permit. This paves the way for large-scale production of CBD products.

2018: The Agriculture Improvement Act of 2018 creates more room for hemp cultivation,  beyond pilot programs. It also lifts restrictions on the transportation, sale, and possession of hemp products across all 50 states, as long as they meet federal guidelines.

Given CBD’s 2018 status change, most people falsely assume that CBD or any cannabidiol supplements can be legally marketed anywhere in the United States. Well, that is wrong: CBD marketing and use is still tightly regulated. Here’s a comprehensive guide to assist you in understanding precisely where CBD is legal, and under which specific circumstances.

Why There’s Confusion Surrounding CBD

As we noted earlier, CBD is a naturally occurring chemical amalgam extracted from cannabis plants. The cannabis plant produces over a hundred different cannabinoids, and CBD just happens to be one of them. Unlike its cousin THC, CBD isn’t psychoactive, meaning that CBD won’t induce a psychoactive high. Reportedly, CBD use results in relaxation, coupled with other benefits.

CBD is found in both marijuana and hemp varieties of cannabis plants. But there are also three different cannabis varieties:

  1. Cannabis Sativa
  2. Cannabis Ruderalis
  3. Cannabis Indica

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:

  • Cannabis with a THC content of 0.3% or less can be classified as hemp
  • Cannabis with THC exceeding 0.3% is deemed to be marijuana

Hemp Farming Act of 2018

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.

The Farm Bill:

  • Withdraws hemp from the Controlled Substances Act
  • Extends allowances for the commercial cultivation of hemp
  • Legalizes the production of hemp in U.S. territories and Indian tribal land

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.

All in all, hemp and CBD oil are considered federally legal in all 50 states. Anyone in the United States can legally buy CBD oil on health store shelves, some pet stores, and the internet. In light of this new legality, consumer sales for CBD products reached over $350 million in 2018. Best of all, you don’t need a prescription or medical card to buy CBD.    

CBD Isn’t Legal in All Its Forms

The Farm Bill allows the FDA to regulate products containing cannabis and cannabis-derived compounds, including CBD, under the Public Health Service Act, and the Federal Food, Drug, and Cosmetic Act.

If there’s a CBD product that is intended for use as a dietary supplement, food, drug, or cosmetic, then it’s under FDA regulation.

The FDA is in the process of assessing CBD’s safety. Its stance, for now, is that it’s illegal to add CBD to food or to use CBD as a dietary supplement for commerce between interstate lines.

This means:

  • CBD supplements and food products can be sold within their state of origin or in states where these products are legal. 
  • CBD products labeled as dietary supplements or food can’t be sold across state lines. 
  • ‘Active hemp extract’ products usually bypass such regulations and can be sold across all 50 states.
  • Products not advertised as supplements or foods with medicinal properties of CBD are exempt from FDA regulation.

CBD tincture dropper on white backgroundWhere Is CBD Illegal?

After the 2018 Farm Bill, as per federal law, CBD is considered legal in the 50 states. With that being said, since the law is still relatively new, some states haven’t fully embraced CBD. States are grouped into four varying jurisdictional categories.

Friendliest States

These states have specific laws that allow retailers to sell hemp-derived industrial products.

Such jurisdictions include Oklahoma, Illinois, Indiana, Kentucky, Colorado, Alaska, South Carolina, Rhode Island, North Carolina, Oregon, New York, Missouri, Maryland, Wisconsin, Vermont, Utah, Tennessee, and Texas.

Friendly States

Under these jurisdictions, industrial hemp cultivated in compliant Farm Bill agricultural pilot programs is exempted from being classified as marijuana.

They include North Dakota, the District of Columbia, New Mexico, Montana, Kansas, and Hawaii.

Gray Area States

Even though Congress passed a bill legalizing hemp, and subsequently CBD, at the federal level, the hemp plant is still regulated, and some state laws conflict with federal laws, creating a gray legal area for CBD in America.

These jurisdictions include Connecticut, Florida, Minnesota, Mississippi, Nebraska, Delaware, Arkansas, Idaho, Georgia, Iowa, Massachusetts, Maine, Louisiana, New Jersey, New Hampshire, Washington, Virginia, and Pennsylvania.

States With Concern

These states don’t have explicit prohibitions regarding how industrial hemp-derived CBD products are sold. But recent pronouncements and law enforcement actions raise a bit of risk.

These places include California, South Dakota, Arizona, Alabama, Wyoming, West Virginia, South Dakota, Ohio, Nevada, Michigan, and West Virginia.

States Have Their Own Laws

Every state has its own set of policies and laws surrounding CBD possession, sales, manufacturing, distribution, and cultivation. To make things even more complex, many state legislatures are exploring proposed amendments to develop more CBD procedures and regulations.

In short, many states allow CBD usage for specific medical conditions. But laws may differ from state to state. But to stay within federal legalities:

  • Legal CBD is defined by the majority of states as a hemp extract
  • To be considered CBD, the THC concentration for a product ranges from 0.3% to 0.0%.
  • While CBD is federally legal, several states still place partial or full restrictions on CBD product purchases. They continue to view it as being no different from marijuana.

So before consuming any CBD product, you need to look at restrictions in your state. But the bottom line is that the consuming and purchasing hemp-derived CBD products are legal in all 50 states.

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