Gavin Howe
CBD is a compound found in the cannabis plant. It is known to have medicinal properties, but it does not produce a high like THC. While CBD is legal at the federal level as long as it contains less than 0.3% THC, the laws surrounding its use vary from state to state. Some states have fully legalised CBD, while others have only conditionally legalised it, and a few have outlawed it entirely. This is because each state has its own Controlled Substances Act (CSA), which generally mirrors the federal law but allows for state-specific regulations.
Can State Law Ban CBD?
| Characteristics | Values |
|---|---|
| CBD Legality by State | Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming |
| CBD Fully Legal States | Alaska, Arizona, California, Colorado, Connecticut, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, Oregon, Vermont, Virginia, Washington, District of Columbia |
| CBD Restricted States | Idaho, Iowa, Kansas, Nebraska, South Dakota, Texas, Wisconsin |
| Federal Law on CBD | Legal as long as it contains less than 0.3% THC |
| FDA-approved CBD product | Epidiolex, an epilepsy medication |
| FDA Regulation of CBD | All CBD food and beverage products currently on the market are not technically legal |
| State Law Reviews | Available upon request |
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What You'll Learn
CBD legality varies across US states
Some states, such as Idaho, Iowa, and South Dakota, have maintained a strict stance, with CBD being entirely illegal. In these states, hemp-derived products may be classified as marijuana, falling under the purview of the Controlled Substances Act. On the other hand, states like New Jersey, New Mexico, and North Dakota have embraced a more permissive approach, legalising CBD without restriction.
The legality of CBD in other states falls into a grey area, with varying degrees of restriction. For instance, in Alaska, California, Washington, and several other states, CBD is legal, but it cannot be sold in combination with food or beverages, except in licensed cannabis stores. Similarly, Vermont has legalised CBD but prohibits labelling a product as "Pure Maple Syrup" if CBD has been added to it.
The dynamic nature of CBD laws is evident in states like Texas, which initially legalised hemp products but is now considering a ban on consumable hemp products with THC due to concerns over safety and abuse. This shift underscores the evolving nature of CBD legislation, where states are actively reevaluating their stance on the legality and regulation of CBD products.
It is worth noting that the enforcement of CBD laws can vary, even within states that allow its use. Local law enforcement misunderstandings and varying interpretations of the law can lead to discrepancies in how CBD laws are applied. As a result, individuals and businesses dealing with CBD products must remain vigilant about the specific laws and regulations in their respective states and municipalities.
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Federal law vs. state law
The legality of CBD is a complex issue that involves the interplay of federal and state laws. At the federal level, CBD derived from hemp is legal as long as it contains less than 0.3% THC. The 2018 Farm Bill removed hemp and hemp derivatives from the definition of "marijuana" in the Controlled Substances Act (CSA), effectively legalising hemp-derived CBD products with low THC content. However, the Farm Bill also preserved the FDA's authority to regulate products containing cannabis or cannabis-derived compounds under the FD&C Act.
While federal law sets a baseline for CBD legality, each state has its own laws and regulations regarding CBD. State laws may be more restrictive or permissive than federal law. For example, states like Idaho, Iowa, and South Dakota have completely banned CBD, while others like New Jersey, New Mexico, and North Dakota have legalised it without restriction. Some states allow CBD for medical use only, while others permit both medical and recreational use. The specific regulations can vary widely, and it's important for individuals and businesses to understand the laws in their state.
The discrepancy between federal and state laws creates a complex landscape for CBD legality. Even within states that allow the legal sale of hemp-derived CBD, there may be complications at the local level. Additionally, enforcement actions have occurred even in states where CBD is legal, due to misunderstandings by law enforcement or differences in local regulations. This highlights the importance of understanding the specific laws and regulations in a given area before engaging in any CBD-related activities.
It's worth noting that the legal landscape surrounding CBD is constantly evolving. Public opinion, legislative actions, and ongoing communication between federal, state, and local authorities all play a role in shaping the legal status of CBD. As of 2023, the FDA has approved only one CBD product, Epidiolex, an epilepsy medication. The agency is expected to release proposed rules regarding CBD, which may further clarify its legal status and regulatory framework. In the meantime, individuals must navigate the complex interplay of federal, state, and local laws to ensure compliance and avoid legal repercussions.
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FDA regulation of CBD
The FDA has concluded that a new regulatory pathway is needed for CBD products, citing the need to balance individuals' desire for access with the regulatory oversight required to manage risks. The FDA has committed to working with Congress to address this matter and develop a cross-agency strategy for regulation.
The FDA's existing food and dietary supplement authorities provide limited tools for managing the risks associated with CBD products. Safety concerns have been raised, particularly regarding long-term use, with studies indicating potential harm to the liver, interactions with certain medications, and possible harm to the male reproductive system. Additionally, CBD exposure is a concern for vulnerable populations, including children and pregnant individuals.
The FDA's Cannabis Product Committee (CPC) plays a crucial role in developing and implementing cross-agency strategies and policies for regulating cannabis products. The FDA also encourages clinical research and drug development related to cannabis and its derivatives, providing resources such as the Botanical Drug Development Guidance for Industry and the Pre-Investigational New Drug application (PIND) process.
While the FDA has not approved the marketing of cannabis for the treatment of any disease or condition, it has approved one cannabis-derived drug, Epidiolex (cannabidiol), and three synthetic cannabis-related drugs: Marinol, Syndros, and Cesamet. These approved drug products are prescription-only and regulated like other synthetic drugs.
The FDA continues to monitor the marketplace, identify risky products, and take action within its authorities to protect public health and safety. The agency's commitment to working with Congress on a new regulatory pathway for CBD products indicates a proactive approach to addressing the challenges posed by the growing CBD market.
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CBD products and their legality
CBD, or cannabidiol, is a derivative of the cannabis sativa L. plant, commonly known as marijuana. It is non-psychotropic and non-impairing, meaning it does not cause a "high".
CBD can be derived from hemp or non-hemp plants. Hemp is defined as any part of the cannabis sativa plant with no more than 0.3% of tetrahydrocabinol (THC), the mind-altering substance in cannabis. In 2018, the US Congress passed the Agriculture Improvement Act, which removed hemp from the federal Controlled Substances Act (CSA) and effectively legalised CBD if it was derived from hemp.
However, the Farm Bill left the responsibility of legalising hemp to the individual states. As a result, the legality of CBD products differs across states. Some states have not removed hemp from their state CSAs, so hemp is still considered marijuana in those states. Three states (Idaho, Iowa, and South Dakota) outlaw CBD entirely, while in others, it is legal with certain restrictions. For example, in Alaska, California, and Washington, CBD cannot be sold in combination with food or beverages, except in licensed cannabis stores.
The US Food and Drug Administration (FDA) has approved Epidiolex, a medicine containing purified CBD from hemp, to treat rare seizure disorders. However, aside from this, the FDA has not approved any other CBD drug products. The FDA has concluded that THC and CBD products are excluded from the dietary supplement definition under the FD&C Act, and therefore cannot be sold as dietary supplements. The FDA also regulates hemp-derived food and drug products, and any substance added to food is considered a food additive and is subject to premarket review and approval by the FDA.
CBD products are widely available over the counter, but they are not controlled by the FDA and may contain higher levels of THC than advertised. This can cause a positive drug test result, as can the use of THC-containing products.
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THC and CBD claims
CBD and THC are both compounds found in the cannabis plant. CBD stands for cannabidiol, and it is a non-psychoactive compound, meaning it does not produce a high. On the other hand, THC is the main intoxicating element in cannabis, producing a high.
CBD is legal at the federal level in the US, as long as it contains less than 0.3% THC. However, each state has its own laws regarding the legality of CBD and THC, and these laws are constantly evolving. While some states have fully legalised CBD, others have only conditionally legalised it, and a few have outlawed it entirely. For example, Idaho, Iowa, and South Dakota have made CBD entirely illegal, whereas Alaska, Arizona, California, and several other states have fully legalised it.
The 2018 Farm Bill removed hemp and hemp derivatives from the definition of "marijuana" in the Controlled Substances Act, which paved the way for the hemp industry's expansion. However, the bill left the responsibility of legalising hemp to the individual states, resulting in a patchwork of varying laws across the country.
The Food and Drug Administration (FDA) is responsible for regulating hemp-derived food and drug products. However, as of 2023, the only FDA-approved CBD product is Epidiolex, an epilepsy medication. Both THC and CBD claims are often poorly reviewed, poorly verified, and unsubstantiated by the FDA, and the labelling may not always reflect the product's efficacy or chemical makeup.
In summary, while CBD is legal at the federal level in the US, the legality of THC and CBD products varies widely from state to state. It is essential to review local laws before using or selling any CBD or THC products to ensure compliance with the relevant regulations.
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Frequently asked questions
No, CBD is not legal in all US states. While CBD derived from hemp is legal at the federal level, states have varying laws regarding the legality of CBD and its use for medical and recreational purposes.
Idaho, Iowa, and South Dakota have entirely banned CBD. Kansas only allows industrial uses of CBD. In Texas, hemp production for smoking, including vaping, is not allowed.
Yes, state law can ban CBD. The 2018 Farm Bill removed hemp and hemp derivatives from the definition of "marijuana" in the Controlled Substances Act, but it also explicitly preserved the FDA's authority to regulate products containing cannabis or cannabis-derived compounds. This means that while federal authorities are no longer arresting people for extracting CBD or possessing hemp, the FDA still treats products containing cannabis or cannabis-derived compounds as it does any other regulated products. Ultimately, each state handles hemp and CBD differently, and state law can ban CBD.
