CBD oils are increasingly popular among medical patients, athletes, and consumers looking for muscle relaxation, general therapy, and anxiety reduction. But their legal status remains utterly confusing—especially since the US Drug Enforcement Administration published a rule regarding CBD last December.

In that rule, the DEA reiterated that all cannabis extracts, including CBD, are considered Schedule I substances. The agency said the clarifying rule was needed to bring US law into conformity with United Nations treaties governing controlled substances.

But the clarification only served to confuse both consumers, CBD manufacturers, and retailers. And it was almost immediately challenged in court by a consortium of hemp and CBD oil producers.

More recently, the DEA issued a clarification to the clarification. It clearly stated: “Cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.”

Meanwhile, CBD laws vary from state to state, and while the DEA considers it illegal under federal law, CBD products remain available for sale in health supplement shops and organic food stores around the country—though some of them might not contain all that much CBD.

Confused enough?

We’ll try to sort through it all for you.

CBD Is Legally Allowed in 44 States. However, the Feds Still Outlaw it. Confusing? Heck Yeah!

Cannabidiol, or CBD, is just one of over a hundred cannabinoid compounds found in cannabis. THC is the cannabinoid most folks are after when looking for a high. In contrast, CBD is non-intoxicating. In the 28 states where medical marijuana is legal, CBD products are covered by those same medical marijuana legal protections.

In recent years, 16 states have passed CBD-only laws, which legalize the possession and use of CBD products for specific qualifying conditions—but not cannabis products containing higher levels of THC. Those CBD-only laws often limit the legal possession and use of CBD products to children with epilepsy, and some nerve and muscle afflictions.

Even in those states with CBD legal protections, however, the substance is considered federally illegal by the DEA.

Only six states—Idaho, South Dakota, Nebraska, Kansas, Indiana, and West Virginia still consider every part of the cannabis plant, including CBD, to be illegal.

Most states with CBD-only laws allow possession, but do not allow licensed dispensaries, home cultivation, or any other supply infrastructure. In other words, registered patients can have it and use it but can’t legally obtain it.

In Georgia, for example, the legislature passed a law in 2015 that made legal possession of up to 20 ounces of CBD for patients with qualifying conditions like seizure disorders and multiple sclerosis. The law does not, however, set up any supply infrastructure—there are no licensed dispensaries or producers. Recently, the Georgia legislature passed a compromise law that includes Alzheimer’s disease, AIDS, autism, epidermolysis bullosa, peripheral neuropathy, and Tourette’s syndrome in the list of diseases that can be treated by CBD—as long as that CBD oil has no more than 5 percent THC.

Alabama’s laws allow CBD possession for qualifying patients through a clinical trial program at the University of Alabama. But the state doesn’t carve out any legal protections for production or distribution.

In the six states without CBD laws or medical marijuana laws, CBD remains a drug that’s punishable, in theory, by arrest. But it seems to be an extremely low priority for most law enforcement agencies. We could find only a few instances of anyone being arrested for CBD oil sales, and no examples of arrest for simple possession.

In practice, selling CBD seems to be legally riskier than possessing it. The DEA’s priority seems mostly to concern commercial violations; most cases involved smoke shops and non-cannabis vape stores selling CBD cartridges. In 2015, police seized CBD cartridges at a vape store near Milwaukee, but the store owners were never arrested or charged. (A 2014 law made it legal for patients to possess and use CBD oil in Wisconsin, but the law did not make it legal to sell.) That same year, police in central Florida arrested the owner of a local smoke shop chain for selling CBD products. 

Legal Morass

Did the DEA’s recent rule on CBD destroy the market and end all access to the compound? In a word, no.

“The sky is not falling; however, this is a very concerning move by the DEA,” attorney Bob Hoban told the Denver Post the day the rule was posted. “What it purports to do is give the DEA control of all cannabinoids as a controlled substance.”

Hemp growers weren’t happy about the DEA’s rule. Hoban says the DEA skirted an established federal process: Only Congress can add a new substance to the Controlled Substances Act.

On Jan. 13, the Hemp Industries Association, RMH Holdings, and Centuria Natural Foods teamed up with Hoban Law Group, a Denver-based cannabis law firm, to challenge the DEA’s rule.

The Hemp Industries Association, or HIA, is a California-based international non-profit with 74 US agricultural and commercial companies as members. RMH Holdings is a Colorado hemp producer. Centuria Natural Foods launched in 2014 as a hemp food producer. Since then, the company has entered many licensing agreements, including with Hi Brands International, Inc, a subsidiary of former presidential candidate Gary Johnson’s Nevada-based company, Cannabis Sativa, Inc.

The companies challenge the method the DEA is using more than the impact.

Opinions are divided on whether the DEA’s rule itself was legitimate. DEA officials contend that the inclusion of CBD in the Federal Register notice was almost an afterthought. According to DEA spokesperson Russ Baer, CBD has always been illegal. Cannabinoids, he told Leafly, are the controlled substances.

Paul Armentano, deputy director of NORML, the National Organization for the Reform of Marijuana Laws, takes an uncharacteristic stance on this issue. He sides with the DEA.

“The DEA makes it clear they don’t have to explicitly list anything as a controlled substance as long as a substance is intended for human ingestion, not approved as a drug by the (US Food and Drug Administration), or is structurally or pharmacologically similar to another controlled substance,” he told Leafly. “This DEA rulemaking change doesn’t make it any more illegal” than it previously was. The new rule “was an administrative change,” Armentano added. “It has nothing to do with law enforcement.”

Armentano pointed to several pieces of evidence as proof that CBD has always been treated as illegal at the federal level. Congress has tried and is currently trying to pass bills to remove CBD from the Controlled Substances Act—which would be unnecessary if the compound were already legal. Further, the Controlled Substances Act itself specifies that the government has the right to control substances that are chemically similar to the ones explicitly listed.

Rod Kight, a North Carolina attorney who specializes in business law and cannabis policy, has written a number of lengthy blog posts that get into the case law and legal technicalities of CBD. Those are available here, here, and here.

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