Is CBD Legal?

Cannabis and the chemical compounds derived from it have been around for centuries. Cannabis products are becoming more specialized, more potent, and more popular than ever. Cannabidiol (CBD), in particular, has become a key element of current health and well-being trends.

But THC laws differ between states. What is legal in one state may be illegal in another, and this area of law frequently changes.

If you are caught in an illegal activity involving cannabis or marijuana, you could face criminal drug charges. A criminal defense lawyer can protect your rights in these cases. Yet, it's better to avoid this situation entirely by understanding your local laws.  

Cannabis, Hemp, and Marijuana Differences

The cannabis plant is one of the oldest cultivated plants on earth. Humans have grown it for at least 12,000 years -- longer than wheat or barley. Its strong fibers are often used to make rope and textiles. People would also cook the seeds and eat them along with other grains.

Hemp and marijuana are different names for the same species of cannabis plant, cannabis sativa. Cannabis sativa plants contain tetrahydrocannabinol (THC) in their leaves and buds. THC is the psychoactive compound that gets users high. Different cannabis plants can have different levels of THC.

Cannabis plants also contain cannabidiol (CBD) in varying amounts. Cannabidiol by itself does not produce a high, but studies have shown it can help with anxiety, chronic pain, and other health conditions.

Cannabis plants can be selectively bred to be high CBD or high THC. In general, cannabis plants with high THC levels (higher than 0.3%) are considered "marijuana." Although several states have legalized marijuana in recent years, it remains illegal at the federal level.

In general, plants with low THC levels, including those high in CBD, are called "hemp." These plants can be used to create legal CBD products.

The legality of CBD hinges on the percentage of THC. A low THC percentage is acceptable even in states where possession of marijuana remains illegal.

However, raising hemp is not an exact science.

CBD Products Might Contain More THC Than You Think

The cannabis plant, unlike most plants, has a male and a female plant. As long as they are separate, all is well. However, if a rogue male plant gets in among a female field and cross-pollinates it, a CBD field can become rich in THC. This frequently happens with outdoor fields. Solvents can strip out the THC cannabinoids, but this is a costly process and not always done.

The results are hemp products that often contain higher levels of THC than they are legally allowed to, other impurities, or both. It can also lead to consumers running afoul of state laws while thinking they are consuming legal CBD oil products.

The Farm Bill and the Controlled Substances Act

Marijuana is illegal under the federal Controlled Substances Act. Signed by President Richard Nixon in 1970, the Controlled Substances Act placed all known drugs on a five-tiered schedule according to their known medical use and potential for abuse.

At that time, Congress deemed marijuana to have no known medical use and a high potential for abuse and addiction. It was listed as Schedule I with drugs like LSD, heroin, and psilocybin.

The Agriculture Improvement Act of 2018 legalized the cultivation of industrial hemp. The Farm Bill allowed hemp-derived CBD, with a THC percentage below 0.3%, onto the market. CBD oils, lotions, supplements, and other products entered the market shortly after the Farm Bill passed.

When CBD Is Legal and When It Is Not

CBD can be legal and illegal at the same time. Because of the way THC forms in the plant, the same hemp plant can be legal at the base and illegal at the top, as THC tends to concentrate in the upper leaves and buds.

Federal law is not the final say in CBD legality. State laws begin with the 0.3% but also regulate the consumption, by whom, and under what conditions. Before using any CBD product, users should review their state and municipal laws. Likewise, sellers of CBD products should be careful about the legality of their suppliers and products.

State CBD Laws

As of 2023, almost every state allowed at least conditional use of CBD. The most restrictive states, Idaho and Nebraska, require products to be 100% THC-free. In Nebraska, only hemp-derived products are legal. Other restrictive states may require a medical marijuana card for CBD products.

A few states, like Texas, regulate the type of use as well as the product itself. Texas does not allow hemp production for smoking, including vaping. Products manufactured outside the state might be permitted. In general, cannabis laws are confusing, complex, and evolving nonstop.

Food and Drug Administration Oversight

The Food and Drug Administration (FDA) is responsible for monitoring all pharmaceuticals and consumables produced in the U.S. As of 2023, the only FDA-approved CBD product is Epidiolex, an epilepsy medication.

Because marijuana is still a Schedule I drug, the Drug Enforcement Administration (DEA) must license any research. As a result, research progresses slowly despite the promise shown by early testing. As a result, both THC and CBD claims are poorly reviewed, poorly verified, and unsubstantiated by the FDA.

CBD products may contain a significant amount of THC and other contaminants. The labeling may not reflect the product's efficacy or chemical makeup. Consumers should use caution when purchasing any CBD product.

Legal Resources for Consumers

Cannabis laws nationwide are changing at a rapid pace, and it can be difficult for consumers to stay up-to-date on the latest developments. If you have questions regarding your state's medical marijuana laws, take time to review them. If you are facing legal charges because of hemp or marijuana, it's a good idea to seek the assistance of an experienced legal professional.