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Navigating the Legality of CBD

By Joe Cachey

Medically reviewed by Dr. George Gavrilos, Dr. Steven Salzman

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Key Takeaways

  1. The 2018 Farm Bill allowed for the growth of Industrial Hemp and the legalization of hemp-derived CBD. Hemp’s legality is independent from medical marijuana or cannabis.
  2. Although the federal government legalized the cultivation of CBD from the hemp plant, the Food & Drug Administration (FDA) has not issued regulations recognizing CBD as a dietary supplement or food and beverage additive.
  3. With a lack of federal guidance, currently each state mandates how hemp and CBD is manufactured, packaged and sold.
  4. From a practical standpoint, CBD products are specifically banned by only three states. Therefore, any practitioner considering CBD must perform their own due diligence to ensure the quality of any CBD product they recommend.

Navigating the Legality of CBD

This blog, ‘Navigating the Legality of CBD’, provides the legal history and status of hemp and CBD products in the United States. It is not intended to provide legal advice to the reader. The reader should seek legal counsel from an attorney licensed in the particular jurisdiction wherein the reader plans to sell or recommend CBD products.

One of the most common questions asked by practitioners about cannabidiol (CBD) products is are they legal?   

The 2018 Farm Bill (Agricultural Improvement Act of 2018) authorized hemp production and removed hemp from the Drug Enforcement Administration’s (DEA) Schedule of Controlled Substances list.

For many years, federal law did not differentiate between hemp and other cannabis plants, including those that produce products high in THC. Historically, all products derived from cannabis were deemed illegal under the Controlled Substances Act of 1970, a mandated ban on any type of cannabis product, including hemp.

First, let’s be clear on what hemp and CBD are and are not. Industrial hemp is a genetic cousin of the marijuana cannabis plant. Hemp is predisposed to create more CBD during its growth cycle than THC (delta-9-Tetrahydrocannabinol (THC), the compound that causes the psychotropic effects of cannabis). In Hemp plants the typical CBD to THC ratio is 30 to 1. So a typical hemp plant produces 10% CBD and only .3% THC. A cannabis plant will produce a significantly greater amount of THC. So the plants are related but create different outcomes at harvest. CBD is just one of over 100 different cannabinoid substances that found in the hemp plant.3 Learn more about cannabidiol and THC here.

Once the hemp is processed, the finished product may contain various amounts of THC. For example, Full-spectrum CBD, which has every cannabinoid compound that naturally occurs in the hemp plant, may contain different amounts of THC and, depending on the manufacturer, may have more than 0.3% THC.6  This disparity is why the recommending practitioner must find a high quality, ethically produced line of CBD products to specifically utilize and not allow the patient to simply purchase CBD without any forethought. Legally, under the federal Controlled Substances Act, cannabinoids—such as CBD—sourced from the hemp plant, containing less than .3% THC are no longer considered Schedule I drugs. But some gray areas in regulatory/legal issues still exist. 1

How can I protect my patients?

Federally, CBD, sourced from the hemp plant is legal, however the FDA has not designated CBD, itself, as a dietary supplement or food and beverage additive.  Due to the FDA’s lack of engagement on this topic the states have moved in to fill the regulatory void.

Currently, only Nebraska, Idaho and South Dakota outright ban the sale of CBD products. The remaining states offer a wide range of regulation.

For example, California treats CBD as a dietary supplement. The State of Utah proscribes very stringent manufacturing, labeling and testing protocols to ensure the quality of CBD products made and sold in state.  Other states may have a more hands off approach. Therefore, the practitioner should determine CBD’s status in their particular state.

No matter what state you’re located in, quality products can typically be purchased over the internet from companies that follow strict state guidelines. Quality companies act as if they are already being regulated by the FDA, meaning they follow dietary supplement manufacturing procedures (see 21 CFR 111 and 21 CFR 117), FDA labeling guidelines, and transparent testing of ingredients and the finished product.

Navigating the Legality of CBD Conclusion

In reality, the CBD train has left the station. With literally thousands of CBD products available to the general public it is only a matter of time before the practitioner will be asked by a patient about the use of these potential remedies. From a strictly legal standpoint, while no longer considered a Schedule I Controlled Substance, CBD products have not received approval from the FDA. States have stepped up to protect their citizens with varying degrees of regulation. Ultimately, it is the patient’s decision and a thoughtful practitioner can be armed with the knowledge and tools to help the patient make the best decision and ensure the use of quality products.

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Resources 

  1. The Arthritis Foundation. CBD for Arthritis Pain: What You Should Know. https://www.arthritis.org/health-wellness/healthy-living/managing-pain/pain-relief-solutions/cbd-for-arthritis-pain#:~:text=Start%20with%20just%20a%20few,of%20CBD%20in%20the%20blood
  2. ProCon.org. States with Legal Cannabidiol (CBD). https://medicalmarijuana.procon.org/states-with-legal-cannabidiol-cbd/  Updated December 3, 2020. 
  3. U.S. Department of Agriculture (USDA). The Agriculture Improvement Act of 2018. https://www.usda.gov/topics/hemp
  4. Federal Register. Establishment of a Domestic Hemp Production Program. https://www.federalregister.gov/documents/2019/10/31/2019-23749/establishment-of-a-domestic-hemp-production-program Published October 31, 2019.
  5. National Conference of State Legislatures. State Medical Cannabis Laws. https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx  Updated January 4, 2022.
  6. The U.S. Food & Drug Administration (FDA). FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD).  https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd  Updated January 2021.
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