Good news: CBD from hemp continues to be legal at the federal level – as it has always been.
Bummer news: Certain states have decided to pass laws restricting the shipment of CBD into their states.
So here’s the bottom line: Cannabis legalization has moved forward thanks to the ability of the states to determine their own destiny when it comes to cannabis. This same freedom also allows certain states to determine their own rules and laws regarding cannabis – and that sometimes means that things get confusing.
While the legal status of hemp federally, however, has been clear since 2003 – and is protected under the 2014 Farm Bill, as argued by the Hemp Industries Association in their current lawsuit against the DEA – certain states have decided to restrict consumer access to hemp CBD for a variety of reasons.
Here’s what you need to know about state laws and CBD:
- The DEA did NOT reclassify hemp CBD as a Schedule I substance. The DEA’s drug schedule has not been changed (you can look at it here)
- This is very similar to the DEA’s attempt to make kratom illegal in 2016, which also failed
- The DEA cannot create a statute (that is, a formal written enactment of a legislative authority that governs a state, city or country); that can only be done by an act of Congress
- The latest attempts to criminalize CBD is reminiscent of what the DEA tried in 2001… and lost, which is why the Hemp Industries Association exists, and why hemp products have been sold freely in the United States ever since the Ninth Circuit’s final ruling in 2003/2004 (known collectively as Hemp Industries Association v. DEA)
- There is an even more recent federal law defending the fact that hemp is distinct from marijuana – the Agricultural Act of 2014 (colloquially known as “the Farm Bill”) includes this definition of industrial hemp:
- The plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
Here are the latest states to pass laws restricting CBD shipments.
Whether these laws are in line with federal law is again being challenged on a state-by-state basis. In the meantime, however, reputable CBD vendors have ceased shipments to the following states:
- HB 1148 allows for CBD only for people with “treatment-resistant epilepsy,” and must be recommended for treatment by a board-certified neurologist. It does not distinguish between marijuana-derived and hemp-derived CBD.
- HB 2238 states that any CBD oils or extracts must be extracted in an in-state laboratory, and may only be used for “intractable epilepsy” patients.
- Despite open hemp CBD sales at storefronts in the state, Nebraska Attorney General Doug Peterson issued a memo in September 2017 in which he called sale of hemp CBD oil “illegal” in the state of Nebraska.
- While there has been no official announcement from state legislators, as of September 2017, various state law enforcement agencies have been seizing federally-legal hemp products from the shelves of North Dakota stores.
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