HEMP & CBD
The legal status of cannabidiol (CBD) is one of the most misunderstood issues in the cannabis industry. Despite being relatively straightforward, the law is often misstated by news outlets, federal agencies, and non-governmental organizations. The primary cause of confusion is misuse of the word “cannabis.” In order to understand the legal status of CBD, it is necessary to understand the legal status of the various forms of cannabis. This is because CBD’s legal status is based on its source. This is the “Source Rule,” which I will discuss in more detail in this article.
The terms “cannabis,” “hemp,” and “marijuana” all have different legal meanings and significance. “Cannabis” is a scientific and botanical term that has no formal legal definition or legal significance. It refers to Cannabis Sativa L (Cannabis), a genus of flowering plants in the family Cannabaceae. From a legal standpoint, the word “cannabis” can describe a legal plant (industrial hemp) or an illegal one (marijuana).
Industrial hemp is a particular type of Cannabis that is lawful. Pursuant to the 2014 Farm Act, industrial hemp is exempt from the federal Controlled Substance Act (CSA) when it is grown pursuant to a state pilot program and does not contain concentrations of delta-9 tetrahydrocannabinol (THC) that exceed 0.3%. Additionally, Congress has further protected industrial hemp by enacting several consecutive appropriations acts, including the current one, that prohibit the use of any federal funds to interfere with the “transportation, processing, sale, or use of industrial hemp…. within or outside the State in which the industrial hemp is grown or cultivated.”
On the other hand, marijuana is an unlawful type of Cannabis that has higher concentrations of THC than industrial hemp. It is a controlled substance under the CSA.
CBD derived from industrial hemp is legal under federal law and the laws of most states; however, CBD derived from marijuana is illegal. CBD is not included in the list of controlled substance under the CSA or the equivalent statutes of most states. It is controlled and unlawful only when derived from marijuana. This is because marijuana is a controlled substance, and its definition includes “all parts” of the Cannabis plant except for the fibers of the mature stalks and non-germinating seeds. For this reason it is a true statement that chlorophyll is a controlled substance when derived from marijuana. In fact, CBD and chlorophyll share the same legal status under the CSA.
CBD derived from industrial hemp is lawful. Since CBD is not listed in the CSA’s schedule of controlled substances it is only controlled when derived from marijuana. Industrial hemp is a lawful exception to marijuana and CBD derived from it is also legal. Additionally, since the mature stalks of the cannabis plant are an exception to the definition of marijuana, CBD derived from them is also lawful.
For these reasons, statements such as this one are inaccurate:
“CBD derived from the Cannabis Sativa plant is currently controlled as a Schedule I substance under the CSA.”
This is an actual statement made by a government agency. In fact, a rule enacted by the DEA using similar terminology was the subject of a recent lawsuit filed by the Hemp Industries Association against the DEA. (The lawsuit prompted the DEA to clarify the rule on several occasions and the Court to clarify that industrial hemp is not a controlled substance.) To say that all CBD is unlawful because it is a derivative of Cannabis is nonsensical; there are lawful and unlawful types of Cannabis.
CBD’s legal status is about to become much less complicated, at least with respect to the CSA. The 2018 federal Farm Bill, which is likely to be enacted this Fall, explicitly states that cannabinoids derived from hemp, including CBD, are lawful in all 50 states. In effect, the 2018 Farm Bill codifies the Source Rule by specifically articulating that CBD from hemp is lawful. Although that is the case now, the 2018 Farm Bill clarifies in a single statutory provision what currently takes a short article (or a legal brief) to articulate. Additionally, the 2018 Farm Bill will eliminate the issue of state by state legality by making hemp and CBD derived from it legal across the country in all 50 states.
Written by Attorney Rod Kight