Though cannabidiol (CBD) is a promising therapeutic component of marijuana, whether it’s legal to sell as an isolated chemical has been a matter of controversy, especially in light of recent changes in federal regulation. Since cannabis is still federally legal, many consumers and producers question: is CBD legal if it comes from the cannabis plant?
CBD has been under scrutiny by medical researchers and pharmaceutical companies since its discovery. Known predominantly for being one of the non-psychoactive cannabinoids in pot, studies have show it can reduce anxiety, induce muscle relaxation, and even help with epileptic seizures. As such, there has been an uptick in development of cannabis pharmaceuticals like the already available (in the UK) CBD combination drug Sativex and the CBD-only Epidiolex, which was in Phase III clinical trials as of August 2017.
In spite of active research and development by pharmaceutical companies and its regular promotion and sale across the internet, the back-and-forth between all the different state and federal rules on marijuana puts CBD in a legal gray area.
Is CBD Legal?
For now, the answer seems to be yes. However, it’s a complicated and convoluted classification, which seems to be status-quo for most cannabis policy at the federal level in the U.S.
The U.S. government has a history of blatant hypocrisy concerning the legality of cannabinoids. The feds own a patent on cannabinoids as antioxidants at the same time the Drug Enforcement Agency treats marijuana as Schedule I substance — as dangerous as heroin with no known medical uses.
Congress, starting in the 1930s, made weed illegal because of a blend of ignorance, racism and crony capitalism that continues to inform marijuana policy.
Still, in response to the growing market for cannabinoid distillates, the DEA acknowledged in 2016 a new drug code was necessary to better account for extracts. As a result, they created the recent 7350 Drug Code. The addition does little to change the agency’s reactionary stance on pot policy, however.
IS CBD Legal Under The New 7350 Drug Code?
The DEA made a final action ruling on “marihuana extract” in its new 7350 Drug Code, effective January 2017. The amendment to the body of existing rules governing the agency states “extracts of marihuana will continue to be treated as Schedule I controlled substances.”
The definition of “marihuana extract” is an extract containing one or more cannabinoids derived from any plant of the genus Cannabis, other than the “separated resin (whether crude or purified) obtained from the plant”.
At first glance, it would appear CBD, being a cannabinoid, is not legal under the DEA’s new ruling.
The tuling prompted a consortium of hemp and CBD oil companies to sue the DEA. In the civil complaint, they argue the agency has no legal authority to make such a ruling, insisting that only Congress can ban a substance not explicitly named in the Controlled Substances Act. The plaintiffs say the DEA cannot create a new drug code without following the procedures or presenting required findings as outlined in the Act. The existing Controlled Substances Act only expressly prohibits the psychoactive cannabinoid tetrahydrocannabinol (THC), so a federal court will need to rule on whether the 7350 Drug Code is Constitutional.
Is CBD Legal Without THC?
In a response to the backlash and confusion, the DEA issued a clarification of Drug Code 7350. In it, they affirm that only materials or products included in the Controlled Substances Act are covered under 7350. Since THC is the only cannabinoid explicitly defined under the act, it would appear CBD is, technically, in the clear.
The clarification implicitly states if it were possible to produce a CBD product containing no other cannabinoids, the extract (e.g. CBD oil) would not fall within their 7350 Drug Code, which was modified to make clear it includes cannabis extracts that contain only one cannabinoid. This does not include cannabis resin and other forms of cannabis extracts that contain multiple cannabinoids.
It’s theoretically possible to produce a CBD solution that contains no other cannabinoids, which the DEA acknowledged in a December, 2016 statement. The DEA claimed ignorance of any industrially-utilized methods which could achieve such a result, however.
However, there is another problem: the flowering tops, resin and leaves of the cannabis plant are all classified as “marihuana” and thus fall under the Controlled Substances Act and can’t be used legally for industrial purposes like making CBD oil. The DEA definition is as follows:
…”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.” 21 U.S.C. § 802(16).
Thus, CBD is legal insofar as the solution in which it is dissolved has absolutely no THC, and if the source material doesn’t include cannabis buds and leaves.
However, the agency statement also acknowledged cannabinoids appear only in trace amounts in the stalks of the plant and its seeds because of the small quantities of resin that adhere to the surface of those plant parts. They say:
…based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds. The industrial processes used to clean cannabis seeds and produce seed oil would likely further diminish any trace amounts of cannabinoids that end up in the finished product. However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids
There are a lot of sources online that tout: so long as there is less than .3% THC in a CBD product, you’re in the clear. Readers should be mindful that when the DEA says absolutely no THC, they mean zero. This .3% classification seems to have come from the observation that most strains of cannabis sativa that have below .3% THC have been deemed as hemp.
Hemp is a variety of the Cannabis sativa plant specifically used for industrial purposes such as paper, textiles, clothing, food, etc. Because hemp is so dominant in the mainstream (there are hundreds of hemp clothing brands and hemp drinks, protein powders etc.), it would appear the plant itself is legal and, thus, any extracts made from it would also be legal.
This is precisely how the growers of Charlotte’s Web were able to create potent CBD oil “legally” — breeders and growers have been able to create high-CBD strains of cannabis that contain almost no THC, warranting a hemp classification.
However, technically speaking, if the DEA were to test a product that was made from a hemp plant and it had non-zero amounts of THC, the product would technically be illegal under the 7350 Code.
All this makes creating a CBD oil that actually has significant amounts of CBD in it quite difficult. That’s why a lot of manufacturers have been making “hemp oil”, which is legal and processed but contains only trace amounts of CBD– rendering it far less effective from a medical perspective. Therein lies the rub. If a producer were able to process hemp to produce a CBD extract, they would presumably be protected, as such strains of cannabis contains only trace amounts of THC… but also CBD.
Is CBD Legal?! Get to the point!
It would appear as though CBD is legal in 50 states if and only if it meets the following criteria:
- Extracted from cannabis plant material that does not include buds and leaves
- Chemically filtered to assure that absolutely no THC is in the final product
Keep in mind that it would be practically impossible for the DEA to identify the source material used to extract CBD. While we can’t concretely condone illegal behavior, it would appear that so long as your CBD oil has no THC, you are in the clear according to the DEA!
Some states implicitly ban CBD, though, due to the rejection of bills that would have explicitly rendered CBD legal. While permissible on the federal level, CBD is currently legal in 44 states — 28 of which legalize CBD by default of their existing medical marijuana program. See which states will allow you to purchase legal CBD here.