Increasingly, more states are legalizing medical or recreational marijuana, but the laws vary from state to state. Specific legislation around hemp, marijuana, and CBD is in a constant of flux.
Cannabis laws in the United States are experiencing a tidal shift. Eleven states now have laws legalizing the use and possession of recreational marijuana for adults. And over half the states in the country have a comprehensive medical marijuana program. However, some forms of cannabis are still illegal at the federal level and specific legislation regarding hemp, marijuana, and cannabis can vary from state to state. So, where does that leave CBD?
On the federal level, CBD is legal. This change, which officially legalized hemp and all hemp-derived products like CBD, occurred in December 2018. But don’t automatically assume you’re in the clear when it comes to CBD. States can still pass their own regulations to ban hemp and CBD.
CBD’s legality can also be affected by how it was made and its intended use. Most CBD products are sourced from hemp which is legal in the majority of states. But CBD products can also be made from marijuana which remains illegal in many areas. And, in certain states, the legality of marijuana-based CBD could change depending on whether it’s used medically or recreationally.
Still, much of the news coverage focuses on marijuana. So, where does that leave CBD?
As of December 2018, CBD is legal nationwide, federally. That seems straightforward enough at first glance, but the legality of CBD in your state is likely a bit more complicated. It depends on which state you live in, and whether your particular CBD product was sourced from industrial hemp or marijuana.
While a majority of CBD products are sourced from hemp, they can also be sourced from marijuana, which contains a greater amount of THC. Recreational marijuana is only legal in ten states and Washington, D.C. Unless you live in one of those states, you need to be careful about where your CBD products are sourced from, or you could be breaking the law.
In large part, if the CBD in question was derived from federally-legal hemp, you are in the clear. The only three states that pose an exception to this rule are Idaho, Nebraska and South Dakota.
Idaho is one of three states that has restrictions on all forms of cannabis, despite the 2018 Farm Bill legalizing industrial hemp on a federal level. The only exception is for pediatric patients with extreme forms of epilepsy—but even they are only permitted to be prescribed Epidiolex (a FDA-approved drug that contains CBD), rather than CBD oil itself.
Because Section 37-2701 of Idaho Code defines marijuana as “all parts of the plant of the genus Cannabis, regardless of species,” CBD is illegal in Idaho. This creates a significant gray area for citizens of Idaho who may only be using CBD legally if they are on federal ground. However, in 2015, Idaho’s attorney general ruled that CBD may be considered legal in the state if it meets a set of strict policy guidelines.
Nebraska does has an industrial hemp pilot program, but cannabis of all forms is highly restricted in this state. Currently, CBD is still included in the legal definition of marijuana under Nebraska’s Uniform Controlled Substances Act.
In 2015, Nebraska passed LB 390, which allowed CBD to be prescribed for individuals with intractable epilepsy, but only to patients accepted into the state Medical Cannabidiol Pilot Study. That study expired in 2019.
In preparation for that expiration date, the State Attorney General released a statement clarifying that because CBD is still classified as marijuana, the only other current legal exception for CBD products are drugs that have been approved by the FDA. To date, that only includes Epidiolex, a CBD oral spray for severe epilepsy.
Because CBD from industrial hemp is legal on a federal level, thanks to the 2018 Farm Bill, this leaves the current overall legal status of CBD in Nebraska murky at best.
Along with Idaho and Nebraska, South Dakota has the strictest laws on cannabis in the country. Possession of just 2 ounces or less is a misdemeanor with up to a 1 year prison sentence and a $2,000 fine. The state doesn’t have a medical marijuana program or an industrial hemp pilot program.
The bill also removed CBD from the definition of marijuana and reclassified it as a Schedule IV controlled substance, instead of Schedule I. However, that still criminalized CBD in a way that contradicts the federal legalization of CBD sourced from hemp. In January 2019, South Dakota’s Health and Human Services Committee passed an amendment that clarified that possession of hemp CBD, without a prescription, is legal.
This article is for informational purposes only. Consult your state’s Criminal Code or Agriculture Department for the most up-to-date information on regulation of CBD in your state.