CBD Laws by States: Legal Hemp Cannabidiol Oil Regulations in US Guide
The 2018 Farm Bill and Hemp-Derived CBD
It is a common misconception that CBD (a non-intoxicating compound in cannabis) is fully legal and is no longer a controlled substance. The Brookings Institution features an explainer on hemp legalization and the status of CBD. According to the explainer, it “is true that section 12619 of the Farm Bill removes hemp-derived products from its Schedule I status under the Controlled Substances Act, but the legislation does not legalize CBD generally,” rather, “CBD generally remains a Schedule I substance under federal law.”
The 2018 Farm Bill creates exceptions to CBD’s Schedule I status under certain conditions. The Brookings Institution explains that “The Farm Bill ensures that any cannabinoid—a set of chemical compounds found in the cannabis plant—that is derived from hemp will be legal, if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower. All other cannabinoids, produced in any other setting, remain a Schedule I substance under federal law and are thus illegal.” The one exception is Epidiolex, a pharmaceutical-grade CBD product approved by the FDA.
According to a report by the Congressional Research Service, the 2018 Farm Bill defines “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” The report further indicates that, “as defined in the statute, hemp must contain no more than a 0.3% concentration of delta-9 tetrahydrocannabinol (delta-9 THC)—marijuana’s primary psychoactive chemical.”
In addition, the 2018 Farm Bill did not make hemp-derived CBD legal in all 50 states. Each state has its own laws and regulations on hemp-derived CBD, which can include prohibiting the substance. Further, states that do permit CBD products may also have their own laws concerning the types of hemp-derived CBD products allowed. Also, legislation and establishment of an industrial hemp program in a state does not mean that hemp-derived CBD products are legal in a state.
Please be mindful that cannabis/marijuana is not legal under federal law. Although several states have enacted their own laws concerning cannabis/marijuana, it is still illegal under federal law and nothing in this article is intended to lead you to believe otherwise. The “federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811), which does not recognize the difference between medical and recreational use of cannabis,” explains a webpage by Americans for Safe Access.
Senate Bill 6 concerns the state’s industrial hemp program. However, according to the CBD Awareness Project, because the state “hasn’t yet produced hemp under their industrial hemp pilot program (Senate Bill 6), so technically any CBD products could be in violation of state law.”
Alaska also issued a Consumer Alert about CBD.
On January 24, 2019, the state’s Attorney General released an “Update on Legal Status of Products Containing Cannabidiol (CBD), In Light of Federal 2014 and 2018 Farm Bills. The California Department of Public Health also issued a statement on Industrial Hemp and CBD products.
The Colorado Department of Public Health & Environment issued a statement relating to CBD products.
Title 3 Chapter 28 is Industrial Hemp. The USDA approved Delaware's Industrial Hemp Program in January 2020.
Retailers in Hawaii were cautioned on sale of CBD products, according to a news report.
Illinois established an Industrial Hemp Act. State representative Bob Morgan introduced a bill that would “require all CBD products sold in the state to meet testing requirements that would be developed by the Illinois Department of Agriculture,” according to a news report by the Chicago Tribune. It appears the bill is still pending.
IC 15-15-13 is Industrial Hemp.
WTHR 13 reports that new rules “intended to help both consumers and law enforcement – impose new labeling requirements on all CBD products sold in Indiana, and those who break the law could face stiff penalties.” It seems that one of the new labeling requirements is that CBD products in the state must have a QR code that can be scanned. According to the news report, “Once scanned with a smartphone, the QR codes must direct consumers to detailed information about each CBD product, including its batch number, expiration date, ingredients and an independent lab analysis.”
It appears that Iowa is in the process of developing a hemp program.
Attorney General issued a statement titled “Attorney General’s statement on hemp and CBD products.”
The state as an industrial hemp pilot program.
The Louisiana Department of Health features information on Industrial Hemp-Derived Cannabidiol (CBD) Products.
Maine has commercial hemp production program. According to a news report by Central Maine “A state law that went into effect Aug. 1  was created to give Maine a workaround to allow CBD foods to continue to be sold despite a federal ban. The law allows for the manufacture and sale of hemp-based CBD so long as the cultivation, manufacture, sale and consumption all occur in state.”
HB 803 concerns industrial hemp.
Act 547 (2014) is the state’s Industrial Hemp Research and Development Act.
Mississippi does not have an industrial hemp program. In October 2019, the state's Department of Public Safety and Department of Health issued a warning on CBD products.
Missouri has an industrial hemp pilot program.
Montana has an industrial hemp program.
The state’s attorney general issued a statement titled “Nebraska Law Regarding Cannabidiol (“CBD”).”
Nevada has an industrial hemp pilot program.
NH Rev Stat § 433-C:3 (2015) is Industrial Hemp Research. According to a 2019 Hemp License Report, the state does not authorize the commercial production of hemp. The New Hampshire Department of Health issued a warning on CBD.
It appears that New Jersey has an industrial hemp program.
SB 6 is the state’s Industrial Hemp Research Rules.
New York has an Industrial Hemp Research Initiative.
The state has an industrial hemp pilot program.
HB 2913 concerns industrial hemp.
Oregon has an industrial hemp program.
Pennsylvania has an industrial hemp program.
Rhode Island has an industrial hemp program.
South Carolina has an industrial hemp pilot program.
The state’s attorney general issued a press release clarifying “questions regarding industrial hemp and CBD (cannabidiol) oil.”
HB 1325 concerns the production and regulation of hemp. The Hill features a news article on “creating a state-regulated hemp industry, which will allow farmers to grow hemp and hemp-derived products, such as cannabidiol (CBD).”
Vermont has an industrial hemp program.
Virginia has an industrial hemp pilot program.
Washington has a FAQ on its hemp program.
West Virginia has an industrial hemp program.
Wisconsin has an industrial hemp program.
Wisconsin’s Statewide Intelligence Center issued a memo titled “Possession and Sale of Cannabidiol (CBD) in Wisconsin,” which can be found here.
Wyoming has an industrial hemp pilot program.
Five Regulatory Myths on CBD
The 2018 Farm Bill is driving the hemp cannabidiol industry. Cannabidiol is a non-psychoactive substance derived from the industrial hemp plant. Despite the industry’s growth, it does not mean that there are no limitations. Below are five regulatory myths:
MYTH: CBD is 100% Legal and is Not a Controlled Substance
This is a myth. Regulation occurs both at the federal and state levels. At the federal level, “the 2018 Farm Bill de-schedules industrial hemp and various derivatives thereof, including CBD, from the Controlled Substances Act when produced in compliance with a state hemp program. Industrial hemp is defined as cannabis (Cannabis sativa L.) and derivatives of cannabis with extremely low (less than 0.3% on a dry weight basis) concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC). The U.S. Drug Enforcement Administration (DEA) retains jurisdiction over CBD from marijuana because marijuana remains a Schedule I substance. The DEA isn’t the only relevant regulator, though. The FDA and the states also have jurisdiction,” according to Nutritional Outlook.
At the state level, a third of states have established hemp programs under the 2014 Farm bill, another third do not have programs and do not have a legal mechanism for sale, and another third are at some developmental stage, but regulations are not final, according to Cannabis Science and Technology.
Myth: Retailers Can Sell Any CBD Product
This is a myth. The FDA has authority to regulate hemp products, which includes CBD. Further, according to a report by NAC Magazine, “the FDA has been clear: It has not yet established a framework for CBD products to be approved. Meaning it remains illegal for retailers to sell products that (1) add CBD to food, (2) make statements regarding therapeutic or medical use or (3) are marketed as a dietary supplement.”
MYTH: The Field of CBD Advertising is Clear
This is a myth. The Food and Drug Administration issued a news release indicating that the FDA and FTC issued a joint warning letter to a company about making unsubstantiated claims. The warning letter reads, in part, that “The Agency continues to be concerned about the proliferation of products asserting to contain CBD that are marketed for therapeutic or medical uses without having been reviewed for safety and effectiveness by the FDA as is required by law and to protect the public health.” Further, Digiday features an article describing the state of CBD advertising. Further,
MYTH: CBD Companies Do Not Face a Risk Selling CBD
This is a myth. In a news release, the FDA reported that it “issued warning letters to 15 companies for illegally selling products containing cannabidiol (CBD) in ways that violate the Federal Food, Drug, and Cosmetic Act (FD&C Act).” Further, according to news report by Supermarket News, “From Maine and New York to California, local police and health officials have taken actions aimed at removing cannabidiol-containing products from restaurants, health food stores and other retailers.”
MYTH: There are No Restrictions or Bans on CBD advertising
This is a myth. According to a report by the Inquirer.net, Facebook and Google have banned CBD advertising. Another report by The Verge features a separate report titled “As CBD Booms, Facebook is Quietly Cracking Down on Ads.”
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