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Is CBD Oil Legal in the US? The Answer Is More Complex Than It Seems

Posted in Ministry of Hemp

Originally published at Ministry of Hemp.

Is CBD oil legal in the US? Oddly, the answer seems to depend on who you ask.

Despite the many benefits of CBD oil and a growing field of research showing both its safety and its efficacy, this popular hemp extract exists today in a confusing legal gray area.

The Drug Enforcement Agency insists that CBD oil is illegal at the federal level, while other legal experts and many vendors and producers of CBD oil think the DEA is overstepping its bounds and argue that hemp extracts are legal.

The good news is that individual consumers of CBD oil appear to be safe. There’s simply no indication that CBD-only extracts, which are made from agricultural hemp and do not cause a high like psychoactive cannabis, are being regularly targeted by anyone in law enforcement. This is especially true in states that have passed laws legalizing CBD.

We’re not lawyers, but we’ve studied the arguments of both sides, and done our best to summarize them in this article and propose what we think might happen next. While CBD’s defenders have a lot of legal ammunition on their side, ultimately whether CBD oil remains available in the future may depend on the actions of the federal government and the courts.

Congress legalized hemp growing & sales for research in 2014

Even though many states have begun to legalize psychoactive cannabis, on a federal level cannabis remains illegal. Despite the mountains of evidence that cannabis in all its forms has numerous benefits to humanity, under the rules of the Controlled Substances Act cannabis is a Schedule I substance, legally defined as a dangerous drug with no medical benefit whatsoever.

Agricultural hemp, the close, but non-psychoactive cousin of cannabis, was also illegal for decades in the United States, from shortly after the end of prohibition until the 21st-century, apart from a brief window when farmers were encouraged to grow hemp during WWII. That changed in 2014, when the annual Farm Bill included a provision allowing states with legal hemp laws on the books to begin licensing growers for research purposes. Crucially, the bill defined research broadly to even include market research, or sales of products based on hemp including CBD.

President Obama signed the Farm Bill in 2014

Further, provisions of the 2015 and 2016 Congressional Appropriations Act forbade the U.S. government from using its funds to prosecute anyone involved in these pilot programs.

Into this new market came a number of successful hemp growers, especially in the Southeastern United States, where falling tobacco profits had left farmers eager for a new cash crop. While some CBD products are imported, many of the highest quality CBD-oil products originate with hemp grown in carefully controlled conditions here in the U.S. As word of CBD’s many benefits and few side effects spread, its popularity grew and so did sales of CBD products.

DEA creates confusion after making Schedule I threat

On December 14, DEA added a notice to the Federal Register that began the process of classifying CBD as a Schedule I drug, alongside psychoactive cannabis. In the notice, the agency argued that CBD oil was already illegal, because all products still contain trace amounts of THC, the psychoactive, and illegal main active ingredient in cannabis, but this new classification would cover CBD-only products, too.

Federal Registrar segment on new DEA rule. 12/14/16.

Immediately, many headlines declared that it was all over for CBD in America. Leafly, a top cannabis news and information website, declared that the “New DEA Rule Says CBD Oil is Really, Truly, No-Joke Illegal.” But the hemp industry fired back, insisting that their products are protected by the 2014 Farm Bill and the subsequent Appropriations Acts.

John Ryan, founder of Ananda Hemp, which grows hundreds of acres of hemp in Kentucky and Tennessee, subsequently using it to produce CBD oil and other hemp products, strongly condemned the move.

“People need to understand that there are federal laws that the DEA cannot bypass,” Ryan told MintPress News. “If they do, they can expect legal challenges from the industry.”

Similarly, Robert Hoban, managing partner at the Denver-based Hoban Law Firm, told Fox 31 Denver that the DEA’s new classification was “an invalid rule” under the law. He continued:

At the end of the day, the DEA needs to sit down, read the Controlled Substances Act, read the farm bill and understand that what they’re saying has practical implications on commerce and on patients around this country. That’s not weight they should throw around so lightly.

Hemp food precedent shows DEA’s history of overreach

In 2001, the DEA attempted to ban the manufacture, sales or import of food and cosmetics made from agricultural hemp seeds produced overseas, using a similar argument that these products contained trace amounts of THC even though they didn’t make anyone high. In a pair of cases brought by the hemp industry, judges ruled “that the DEA had exceeded its authority and struck down the rules as void,” according to Rod Kight, a lawyer who is an expert on drug laws and an advocate for cannabis legalization.

On his blog Kight on Cannabis, Kight noted that now that hemp cultivation is legal in the U.S., the decisions made in these earlier cases apply “to domestically cultivated hemp and its products (such as extracts containing CBD) as well as imported hemp and its products.”

“In other words, marijuana extracts from non-psychoactive (industrial) hemp containing only trace amounts (or less) of naturally occurring THC is wholly legal,” he concluded.

“clarification” of the new rule issued this month may be a sign that the DEA is backing down from some of its threats by acknowledging the limits of their authority:

By creating a new drug code for marijuana extract, the Final Rule divides into more descriptive pieces the materials, compounds, mixtures, and preparations that fall within the CSA [Controlled Substances Act] definition of marijuana. Both drug code 7360 (marijuana) and new drug code 7350 (marijuana extract) are limited to that which falls within the CSA definition of marijuana.

“It is the first time that the Federal government has explicitly stated that cannabinoids (aside from THC which is separately scheduled) are not in and of themselves illegal substances,” Kight noted in another blog entry.

Hope for CBD and hemp in an uncertain future

An activist with an arm around a young child holds a sign reading “Make America Think Again.” (public domain)

Based on our layman’s understanding of the law, if CBD extracts are truly free of THC, and made from agricultural hemp rather than psychoactive cannabis, they’re most likely legal and free from regulation under the Controlled Substances Act. We believe consumers should feel safe buying and using these products, although little is absolutely certain in the current political climate.

Jeff Sessions, the newly minted Attorney General of the United States, has repeatedly threatened to crack down on cannabis in states which have legalized its consumption. He has also spread misinformation about the supposed dangers of cannabis, when in reality this plant is extremely safe (apart from the risks to life and liberty posed by police under the war on drugs).

At the same time, with so many states passing laws to allow either recreational medical use of cannabis, the Justice Department could face an uphill battle if they want to turn the tide of the drug war away from legalization. Likewise, there seems to be ample state and federal laws to protect access to CBD oil for the foreseeable future, though the hemp industry could be forced to fight a potentially costly legal battle to defend itself.

While CBD extracts and CBD-based products may face legal threats in the future, at Ministry of Hemp we’re hopeful that good sense will eventually prevail. Until cannabis, hemp, and all their derivatives are completely legal, we can periodically expect to see this kind of government interference in our lives. However, with the popularity of cannabis legalization at an all-time high among both Republicans and Democrats, we think total legalization is only a matter of time.