Is CBD Legal Where I Live? Understanding Federal and State CBD Laws

Cannabidiol, or CBD, is one of the fastest-growing segments of the health and wellness industry. Soon, CBD products will be appearing in grocery stores in California and Colorado¹. But, because CBD is associated with hemp and marijuana, many people are confused about the legal status of this popular and effective supplement.

What makes things even more confusing is that the United States has a mix of state and federal laws and regulations that are often contradictory.

The good news is that with the passage of the 2018 Farm Bill, CBD is legal to possess, manufacture, and distribute on a federal level.

Understanding the Difference Between CBD, THC, Marijuana, and Hemp

The key to understanding the legal status of CBD is to first understand what CBD is. CBD is a compound found in cannabis plants. For most people, cannabis is synonymous with marijuana.

Marijuana is only one type of cannabis plant. It is still against federal law to produce CBD from marijuana. However, you can legally possess, distill, and sell CBD from hemp, another member of the cannabis family.

What’s the difference?

Marijuana is legally defined as any cannabis plant with more than a .3% concentration of THC. THC is the compound that gets you high.

No matter how you use hemp, you won’t get high because the concentration of THC is too low. The 2018 Farm Bill made CBD derived from hemp, but not from marijuana, legal.

CBD will not get you high. It doesn’t interfere with your cognitive abilities in any way. There are different grades of CBD. Some grades will have trace amounts of THC, but not enough to get you high or intoxicated, no matter how much you used.

Marijuana is still illegal at the federal level in every circumstance. It is a controlled substance, and you can get arrested and go to jail for possession, manufacturing, or distributing the plant in any form.

CBD Under Federal Law

Federal drug laws are mostly enforced by the FBI, the Drug Enforcement Agency (DEA), and the Customs and Border Patrol (CBP). These agents are not pulling over motorists on the highway or coming up to pot smokers in public parks. They are more concerned with large scale trafficking.

However, if you are sending or receiving marijuana through the postal system, or are on federal land and possess marijuana, you will be in trouble with one or more of these federal agencies.

But, you can use CBD in these same circumstances without any legal trouble, as long as it was derived from hemp.

The Food and Drug Administration (FDA) is the federal agency in charge of regulating CBD. Currently, the FDA treats CBD as a supplement. It is not legal to sell CBD in edible foods like brownies across state lines. However, it is not a federal crime to possess CBD in edible form.

The FDA does allow for CBD to be sold in creams, lotions, tinctures, and forms meant for oral digestion (capsules or gummies), across state lines.

There is a lot of pressure on the FDA to loosen the regulations on CBD because it is such. A safe product and because the edible forms of CBD have enormous economic potential.

If CBD is not supposed to be sold in edible forms under federal law, why are there so many CBD edible products for sale everywhere from cafes to grocery stores?

That’s because the FDA regulations only apply to interstate commerce. In other words, it only applies if you transport the CBD from one state to another. If everything happens within a single state, the FDA regulations don’t apply.

CBD Under State Laws

Each state has the right to make their own laws as long as they do not contradict federal law. States cannot make CBD illegal because of the 2018 Farm Bill. But, they can strictly regulate CBD.

States that have legalized marijuana also have the broadest rules for CBD. This is why you see CBD being sold in edible form in states like California, Colorado, Oregon, and Washington.

Some states prohibit the sale of CBD in any ways that are not approved by the FDA. Many states are generally hostile to anything related to hemp or marijuana. However, as long as CBD is from hemp grown under the conditions set up under the 2018 Farm Bill, states can’t do anything about the possession of the CBD.

States can crackdown on the selling of CBD products, such as edibles, that are not allowed under FDA regulations. They can also make life difficult for manufacturers and farmers growing legal hemp by setting up onerous inspections and licensing requirements.

However, if you are a consumer buying CBD oil from hemp, you are acting within the law.  

What Are the Legal Consequences of Using CBD?

Even though CBD is no longer a controlled substance under federal law, that doesn’t mean you there aren’t legal consequences to using CBD.

If you are using broad spectrum or full spectrum CBD, your blood and urine may have trace amounts of THC. This means you could fail a drug test designed to see if you are using marijuana.

It is legal to terminate your employment for a failed drug test in these circumstances. If you are on parole or probation, and a condition of your release is to abstain from drugs, a positive drug test based on trace amounts of THC can still be enough to send you back behind bars.

If you need to avoid THC, even in trace amounts, for any reason, the safest way to use CBD is to only use 99.9+% CBD isolate. It is the purest form of the compound, with all of the THC filtered out.

Using CBD for pain², to help you sleep³, or deal with anxiety issues³ is legal. If you aren’t subject to drug tests, there are no legal consequences to using this compound.

The Future of CBD Regulations

Over the past thirty years, the trend in the individual states has been to legalize marijuana. What was once a slow movement has gained significant momentum over the past five years.

CBD is benefiting from these efforts. The 2018 Farm Bill is evidence though the federal government has been reluctant to legalize marijuana, it is willing to legalize CBD.

The economics of growing hemp and producing CBD are such that even conservative states like Kentucky are looking to make it easier to grow this cash crop at both the state and federal level⁴.

The combination of health benefits of CBD, better education about the difference between CBD and THC, and the economics of hemp mean that state and federal governments will continue to give CBD the green light.

FDA Disclosure

THESE STATEMENTS HAVE NOT BEEN EVALUATED BY THE FDA AND ARE NOT INTENDED TO DIAGNOSE, TREAT OR CURE ANY DISEASE. ALWAYS CHECK WITH YOUR PHYSICIAN BEFORE STARTING A NEW DIETARY SUPPLEMENT PROGRAM

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¹ Retrieved from https://www.washingtonpost.com/business/2019/06/24/cbd-infused-food-beverages-are-still-illegal-under-us-law-so-why-are-they-everywhere/?noredirect=on&utm_term=.2e0f30fcd5c3

² Retreived from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2503660/

³ Retreived from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6326553/ 

⁴ Retreived from https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/