Is CBD Legal?

This is probably one of the most debated questions in the “CBD Community”. Is CBD legal? Are all of these new companies that are selling and shipping products across state lines operating within the law? There is a lot of uncertainty surrounding the legality of these companies and the products they sell. We often receive messages from consumers and entrepreneurs, who are looking to get into the CBD industry, asking for our interpretation. We’re not lawyers, but we can provide you our interpretation on the legal status of CBD products based on all the varying pieces of information out there. Here we go!

The DEA on CBD

First, let’s take a look at some verbiage from a DEA press release from December 23, 2015 titled ‘DEA Eases Requirements for FDA-Approved Clinical Trials on Cannabidiol [CBD]

In the third paragraph of the press release, it reads “Marijuana is a Schedule I controlled substance because of the presence of tetrahydrocannabinol (THC), marijuana’s psychoactive ingredient.  Because CBD contains less than 1 percent THC and has shown some potential medicinal value, there is great interest in studying it for medical applications.  Currently, CBD is a Schedule I controlled substance as defined under the CSA.

To give you some further insight into this highlighted statement, let’s take a look at the definition of marijuana under the United States Code Controlled Substances Act

“The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”

This lengthy and awfully confusing statement stirs a lot of the debate. Many of those who believe CBD to be legal argue that this statement exempts certain parts of the plant, like “the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination

However, you may have noticed that there is an exemption within this exemption that reads, “except the resin extracted therefrom”. Our interpretation is that CBD, a compound/resin that is extracted from the cannabis sativa plant (both hemp and marijuana) is exempted from the exemption. In other words, it is considered “marihuana” under the Controlled Substances Act.

Based on these two excerpts from the DEA, one can probably say with confidence that CBD is illegal. So, why is there so much confusion?

There are several reasons why there is such an extensive debate on the legality of CBD, even though the DEA has made it quite clear that it is a Schedule I controlled substance. We will go into one of the main events that have caused such cloudiness on this topic.

The Hemp Industries Association (HIA) vs DEA

Let’s dive into the 2004 ruling by the 9th US Circuit Court of Appeals in Hemp Industries Association, Dr. Bronner’s Magic Soaps; Atlas Corporation; Nature’s Path Foods USA; Hemp Oil Canada; Hempzels; Kenex; Tierra Madre; Ruth’s Hemp Foods; Organic Consumers Association (The Petitioners) vs. DEA.

To give you a summary of what happened, The Petitioners protested against the DEA’s assessment that hempseed oil and hempseed foods & products are controlled substances. Keep in mind, hempseed oil is NOT CBD oil. Hempseed oil is produced from pressing sterilized hempseeds, which does not contain cannabinoids, such as CBD. The 9th US Circuit Court ruled in favor of The Petitioners. Because of this favorable ruling, this has led many to think that CBD products are not a controlled substance. However, the ruling has no relevance to CBD at all as it specifically pertains to hempseed oil and hempseed foods & products.

All in all, our interpretation is that CBD is a Schedule I substance under the direction of the DEA and the Controlled Substance Act. If that is the case, how are all these CBD companies in operation and why is everyone buying their products? In practicality, the DEA is not enforcing the law in regards to CBD products. Think of it as jaywalking. There are many potential reasons why this may be the case. We can speculate that the DEA realizes that there are potentially health benefits to CBD (which would contradict its Schedule I status). Or, maybe, they cannot justify allocating resources to fighting CBD when there are other battles that they need to prioritize. Or, maybe it’s a combination of both. So, in reality, you probably won’t be going to prison for buying CBD products.

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