Is CBD oil legal?

Yes, and no, depending on what state you live in. Even in states where cannabidiol (CBD) is legal, the newly popular compound is still regulated. CBD is legal depending on a multitude of factors: state law, how each state interprets federal law, how much THC is in the product, whether legislation regarding CBD has been passed, and to what type of product it's been added. 

What is CBD?

A non-intoxicating cannabinoid found in cannabis. After tetrahydrocannabinol (THC), cannabidiol (CBD) is the second-most abundant cannabinoid in the plant, and has many potential therapeutic benefits, including anti-inflammatory, analgesic, anti-anxiety and seizure-suppressant properties. CBD can be sourced from both marijuana plants and hemp plants, the latter of which are legal in the U.S. as they contain minuscule amounts of THC.  

CBD oil dropper
CBD stands for cannabidiol, a non-intoxicating substance found in cannabis.
Photo by: Gina Coleman/Weedmaps

In the body, cannabinoids, the receptors they bind to, and the enzymes that break them down are known as the endocannabinoid system (ECS)

CBD can bind to receptors that are located throughout the body, allowing it to activate several different receptor pathways and possibly provide therapeutic benefits. CBD may also be able to minimize the undesirable effects of THC, including paranoia and heart palpitations, while enhancing the latter's therapeutic effects. 

In what states is CBD oil legal?

Determining where CBD oil is legal can require careful attention to shifting state laws, federal regulations, and the fine print within both. Some states allow farmers to grow industrial hemp to spur hemp production as a new resource for non-medical uses. While others, such as California and Illinois, legalized marijuana to help expand cannabis research, corral the illicit market, and provide adult-use consumers with a clean, regulated supply of marijuana and its derivatives, such as hemp-derived CBD. These often-conflicting laws are creating confusion for regulators, authorities, and consumers. 

Because CBD is a relatively new commodity to the general public, and federal cannabis prohibition is still in place, CBD laws vary significantly from state to state.

CBD oil
Since federal cannabis prohibition is still in place, CBD laws vary significantly from state to state.
Photo by: Gina Coleman/Weedmaps

Kroger grocery stores joined retailers CVS and Walgreens in selling CBD topical products in some states. Because laws and, therefore, retail policies can change, check with the retailers to see if CBD products are available in your state.

NORML noted many state laws that authorize the use of cannabis for medical conditions also permit patients with a physician's recommendation to possess products containing plant-derived CBD. NORML also said numerous other states have enacted legislation explicitly exempting qualified patients from criminal prosecution for the possession of specific products or extracts containing CBD.

Why is CBD legal in some states?

Hemp strains don't produce enough of the cannabinoid THC to cause intoxication, but all types of cannabis, including hemp, were considered illegal under the 1970 Federal Controlled Substances Act. The legislation swept all cannabis under the Schedule 1 umbrella, which defined cannabis as a substance with a high potential for abuse, no accepted medical use, and a likelihood for addiction.

The 2018 Farm Bill legalized hemp cultivation and removed some cannabis from Schedule 1 status by creating a legal distinction between hemp and marijuana. Under the new legislation, hemp is classified as cannabis that contains less than 0.3% THC by weight, while marijuana is classified as cannabis that contains more than 0.3% THC. Because marijuana is categorized as a Schedule 1 substance, CBD that is derived from the marijuana plant is still considered federally illegal. While hemp is now considered an agricultural commodity, it still must be produced and sold under regulations that implement the bill. The USDA has yet to create these regulations.

The Farm Bill also endowed the FDA with the ability to regulate CBD's labeling, therapeutic claims, and presence in foods or drinks. Despite the Farm Bill's passage, the FDA has issued a directive that no CBD, not even hemp-derived, may be added to food or beverages or marketed as a dietary supplement. Given the flood of CBD products on the market already, the FDA has begun re-evaluating that stance and gathering public input. But the agency's slow movement has created further confusion on the state level.

The FDA has historically been strict when it comes to health claims or content that could be understood as medical advice — and it makes no exception for CBD.

The production and sale of hemp, including its cannabinoids, remain tightly regulated federally. The Farm Bill provides that individual states may also regulate and even prohibit CBD cultivation and commerce. States may attempt to regulate CBD in food, beverage, dietary supplements, and cosmetic products independently of the FDA's rules.

Is CBD legal in the United States?

The 2018 Farm Bill removed hemp from Schedule 1 of the Controlled Substances Act, which for decades had classified all cannabis--including hemp--as a substance with no medicinal value and a high potential for abuse. While numerous states have legalized marijuana for medical and adult use, the federal government considers marijuana, and CBD products derived from marijuana in nearly any form, to be illegal.

This is why the distinction between CBD derived from marijuana and CBD derived from hemp is important. Hemp is a variety of the cannabis plant with low concentrations of THC.  For cannabis to be considered hemp in the U.S., it must have no more than 0.3% THC.

CBD and weed
To meet federal legal criteria, CBD oil must contain no more than 0.3 percent THC.
Photo by: Gina Coleman/Weedmaps

While CBD oil and hemp seed oil are either low in THC or THC-free, there's a big difference in the amount of CBD these products contain. Hemp seed oil has only traces of CBD, while hemp flower oil has a much higher concentration.

Is hemp oil legal?

Hemp oil is federally legal if it was extracted from a hemp plant with a trace amount of THC no higher than 0.3%. The 2018 Farm Bill, which legalized production of hemp as an agricultural commodity, also legalized the production of hemp-derived CBD. 

Can CBD be taken out of state?

There are federal protections for the cross-state transportation of hemp CBD products. These protections do not apply to CBD products derived from marijuana. 

In an executive memorandum issued on May 28, 2019, the USDA clarified that 2018 Farm Bill provisions ensure cross-state transportation under a provision ensuring the “free flow of hemp in interstate commerce.”

The Farm Bill prevents states and Native American tribal jurisdictions from prohibiting interstate hemp transportation or shipment as long as it is lawfully produced under a state or tribal plan, or licensed under the USDA plan. This guidance came on the heels of reports from states such as Idaho, where authorities say they will continue to treat CBD as an illegal substance until new federal rules are updated and in effect.

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The information contained in this site is provided for informational purposes only, and should not be construed as medical or legal advice. This page was last updated on August 4, 2020.