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Is CBD Oil Legal?

Depends on Where You Are and Who You Ask

Even though CBD oil is popular among consumers looking for relief from pain, anxiety, and other health issues, the legal status remains utterly confusing. Ever since the U.S. Drug Enforcement Administration (DEA) published a rule regarding CBD last December, a large percentage of CBD oil consumers have questions and demand answers.

In that rule, the DEA reiterated that all cannabis extracts, including CBD, are considered Schedule I substances. The agency said the clarifying rule was needed to bring US law into conformity with United Nations treaties governing controlled substances.

But the clarification only served to confuse both consumers, CBD manufacturers, and retailers. And it was almost immediately challenged in court by a consortium of hemp and CBD oil producers.
More recently, the DEA issued a clarification to the clarification. It clearly stated: “Cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.”

Meanwhile, CBD laws vary from state to state, and while the DEA considers it illegal under federal law, CBD products remain available for sale in health supplement shops and organic food stores around the country—though some of them might not contain all that much CBD.

Confused enough?

We’ll try to sort through it all for you.

CBD is Legally Allowed in 44 States
Cannabidiol, or CBD, is just one of over a hundred cannabinoid compounds found in cannabis. THC is the cannabinoid most folks are after when looking for a high. In contrast, CBD is non-intoxicating. In the 28 states where medical marijuana is legal, CBD products are covered by those same medical marijuana legal protections.

In recent years, 16 states have passed CBD-only laws, which legalize the possession and use of CBD products for specific qualifying conditions—but not cannabis products containing higher levels of THC. Those CBD-only laws often limit the legal possession and use of CBD products to children with epilepsy, and some nerve and muscle afflictions.

Only six states completely outlaw CBD: Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia.

Even in those states with CBD legal protections, however, the substance is considered federally illegal by the DEA.

Only six states—Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia still consider every part of the cannabis plant, including CBD, to be illegal.

Most states with CBD-only laws allow possession, but do not allow licensed dispensaries, home cultivation, or any other supply infrastructure. In other words, registered patients can have it and use it but can’t legally obtain it.

In Georgia, for example, the legislature passed a law in 2015 that made legal possession of up to 20 ounces of CBD for patients with qualifying conditions like seizure disorders and multiple sclerosis. The law does not, however, set up any supply infrastructure—there are no licensed dispensaries or producers. Recently, the Georgia legislature passed a compromise law that includes Alzheimer’s disease, AIDS, autism, epidermolysis bullosa, peripheral neuropathy, and Tourette’s syndrome in the list of diseases that can be treated by CBD—as long as that CBD oil has no more than 5 percent THC.

Alabama’s laws allow CBD possession for qualifying patients through a clinical trial program at the University of Alabama. But the state doesn’t carve out any legal protections for production or distribution.

In the six states without CBD laws or medical marijuana laws, CBD remains a drug that’s punishable, in theory, by arrest. But it seems to be an extremely low priority for most law enforcement agencies. We could find only a few instances of anyone being arrested for CBD oil sales, and no examples of arrest for simple possession.

In practice, selling CBD seems to be legally riskier than possessing it. The DEA’s priority seems mostly to concern commercial violations; most cases involved smoke shops and non-cannabis vape stores selling CBD cartridges. In 2015, police seized CBD cartridges at a vape store near Milwaukee, but the store owners were never arrested or charged. (A 2014 law made it legal for patients to possess and use CBD oil in Wisconsin, but the law did not make it legal to sell.) That same year, police in central Florida arrested the owner of a local smoke shop chain for selling CBD products.

Legal Morass
Did the DEA’s recent rule on CBD destroy the market and end all access to the compound? In a word, no.

“The sky is not falling; however, this is a very concerning move by the DEA,” attorney Bob Hoban told the Denver Post the day the rule was posted. “What it purports to do is give the DEA control of all cannabinoids as a controlled substance.”

Hemp growers weren’t happy about the DEA’s rule. Hoban says the DEA skirted an established federal process: Only Congress can add a new substance to the Controlled Substances Act.

On Jan. 13, the Hemp Industries Association, RMH Holdings, and Centuria Natural Foods teamed up with Hoban Law Group, a Denver-based cannabis law firm, to challenge the DEA’s rule.

The Hemp Industries Association, or HIA, is a California-based international non-profit with 74 US agricultural and commercial companies as members. RMH Holdings is a Colorado hemp producer. Centuria Natural Foods launched in 2014 as a hemp food producer. Since then, the company has entered many licensing agreements, including with Hi Brands International, Inc, a subsidiary of former presidential candidate Gary Johnson’s Nevada-based company, Cannabis Sativa, Inc.

Still on the Shelves, Mostly
Several CBD manufacturers would not speak on the record for fear of inviting federal retaliation, but said they’ve recently had trouble selling their products to non-cannabis retail stores. In January, the Seattle Central Co-op pulled CBD products from its shelves in reaction to the DEA rule. Meanwhile, CBD remains available online and at many retail health stores across the nation.

While some are having trouble, others say the fracas around CBD and hemp has backfired on the DEA. CBDRx’s director of sales, Preston Whitfield, said his company has actually seen an increase in CBD interest everywhere but Texas.

Still, he also said he expects the confusion to cause some CBD or hemp producers to be more careful about how they market their products.

“There is a distinct uptick right,” Whitfield said. “We’re seeing different whole industries coming and seeing it serves a specific interest and end.”

Sports are part of the new big draw, he said. “We’re seeing lots of interest from the professional sports industry, full contact sports, mixed martial arts, athletes wanting to prepare.”

Barry Sommers

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