Not Quite Legal In All 50 States, Part 1

By Michael Chernis, Esq., Chernis Law Group P.C., Santa Monica, California

Cannabidiol (CBD) is the new rage in the alternative treatment of various health conditions. It is increasingly associated with treating serious illnesses, and alleviating ordinary symptoms of illnesses, without creating the high or psychoactive effect of its cannabinoid sister THC. And, unlike THC products, which will practically always violate the Federal Controlled Substances Act (CSA) there is a colorable argument as to why CBD products derived from Industrial Hemp are federally legal. In fact, in this past year, CBD products have become pervasive on the shelves of national retail supermarket and drug store chains, and of course in wellness spas.

The visibility of these products on the shelves of national retail outlets and leading spas leads one to conclude they must be legal. And indeed, it is common for purveyors of CBD products to market them as legal in all 50 states. The legality of these products is far more complex.

Historically, the federal government treated CBD no differently then THC, and thus considered it to be a Schedule I controlled substance. This was based on the premise that CBD could only be derived from the flowering portions of the Marijuana plant, as opposed to portions of the plant not considered illegal, and thus constituted illegal Marijuana under the CSA.

This changed in 2014 when Congress in the 2014 Farm Bill gave federal protection to “Industrial Hemp.” While Industrial Hemp is still a cannabis plant, it refers to strains of the plant that only produce .3% of THC or less, and thus do not tend to create any psychoactive effect. In 2014, it thus became federally legal to grow Industrial Hemp through a State approved program, known as a “pilot program.”

The 2014 Farm Bill, however, did not expressly provide federal protection for derivatives of State-approved Industrial Hemp, such as CBD or extracts containing CBD, as distinguished from the plant material itself. In the 2018 Farm Bill, Congress expressly made all derivatives and extracts of Industrial Hemp federally legal. While the 2018 Farm Bill still leaves it up to individual states to permit or prohibit the cultivation of Industrial Hemp, all states are prohibited from interfering with the transport across that State of Industrial Hemp or derivative products. However, to be clear, that does not mean it is legal to sell CBD products in every state, as an individual State may still prohibit cultivation and sale of CBD and Industrial Hemp products within its borders, even if it must allow the transport of the products across State lines. And a handful of states, including Idaho, still treat CBD no different from illegal marijuana and prohibit its sale.

Thus, the claim that a CBD product is legal in all 50 states is simply, untrue. It is thus incumbent on a retailer, including a spa owner, to ensure that the state they operate in does not regulate CBD products more stringently then the federal government. This is not difficult to ascertain, although it may require consultation with a lawyer.

There are two other points to be aware of regarding the legality of CBD products under the 2018 Farm Bill. First, the 2018 Farm Bill replaces State cultivation “Pilot Programs” with broader programs that must be approved by the US Department of Agriculture, and which must include among other things testing protocols for Industrial Hemp. However, the USDA is still in the process of passing its own regulations, and will not approve any State programs until federal regulations are in effect. Until then, 2014 Farm Bill Pilot Program Industrial Hemp is still legal federally. The distinction is not terribly important, except in those States, like Idaho, which take the position that while the 2018 Farm Bill mandates it must ultimately allow transport of Industrial Hemp across its border, Pilot Program Hemp does not merit the same protection. This is an uncommon position, is at odds with USDA’s own view of the law, and merely emphasizes the need to know the laws in place in your State.

The second and even more complicated nuance, is that the 2018 Farm Bill, while expanding federal protection for Industrial Hemp and derivatives, does not alter or pre-empt the FDA regulatory authority concerning CBD products. The FDA has taken the position that any ingestible product containing CBD is illegal. This issue will be addressed in Part 2 of this series

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