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. Whether CBD is legal depends on a multitude of factors: state law, how each state interprets federal law, how much THC is in the product, whether state legislation regarding CBD has been passed, and to what type of product it's been added. 

What is CBD?

CBD is a non-intoxicating cannabinoid found in cannabis. CBD is the second-most abundant cannabinoid in cannabis, after tetrahydrocannabinol (THC), and it 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 is legal in the US if 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 potential therapeutic effects. 

Is CBD legal in the United States?

There are state laws and then there's federal law. Under federal law, marijuana is illegal but hemp is not even though they are both cannabis. After decades of rolling measures to stamp out weed nationwide,t all types of cannabis, including hemp, were made illegal by the 1970 Federal Controlled Substances Act. The legislation swept all cannabis under the Schedule 1 umbrella, which classifies it as a substance with a high potential for abuse, no accepted medical use, and a likelihood for addiction.

The2018 Farm Bill, however, legalized hemp cultivation and removed some cannabis from Schedule 1 status by creating a legal distinction between hemp and marijuana. Under the legislation, hemp is classified as cannabis that contains no more than 0.3% THC by weight, while marijuana is classified as cannabis that contains more than 0.3% THC. 

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

Because marijuana is still 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 state regulations that implement the bill. States must submit their plans for regulating the cultivation of hemp to the USDA. Some states have chosen not to allow hemp cultivation. 

The Farm Bill did not legalize CBD products, all evidence to the contrary. It did charge the FDA with regulating CBD products, including labeling, therapeutic claims, and its presence in foods or drinks. The FDA normally approves new drugs and other products based on years of scientific study but since all forms of cannabis were illegal for so long, no such rigorous research exists. Companies that have decided to dump what may or may not be CBD into every product imaginable aren't interested in scientific research or FDA approval anyway. 

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. But the agency's slow movement has created further confusion on the state level. States may attempt to regulate CBD in food, beverage, dietary supplements, and cosmetic products independently of the FDA's rules but federal law makes it clear that the FDA has jurisdiction.

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. According to the agency's own long-standing regulatory framework, because it has already approved a drug with CBD in it, (Epidiolex, used to treat childhood epilepsy) the agency cannot also approve non-prescription products with the same ingredient. It also can't approve the ingredient to be added to food and beverages. 

Most states have chosen to align their CBD policies with the Farm Bill by allowing hemp-derived products with 0.3% THC or less. Some states require even less THC and some states restrict the kinds of products CBD can be added to or the method of consumption — topicals are okay but nothing you could smoke, for example. Until and unless there is federal CBD legislation or FDA approval, CBD legality will continue to vary by state. 

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

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 and may not apply to personal CBD products if you try to travel out of state with them. 

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 said they would continue to treat CBD as an illegal substance until new federal rules are updated and in effect. After the 2019 memo, Idaho enacted a law to allow shipments of hemp to pass through the state but it still only allows CBD products with no THC whatsoever. 

How to choose quality CBD products

Since the FDA's job is to protect Americans from dangerous and unproven products but they haven't stepped up yet on CBD, consumers are on their own and must be especially wary. That means it's important for shoppers to choose CBD products wisely. 

Until federal agencies determine final and enforceable regulations, the potential for mislabeled and poor-quality products is high. Knowing what to watch out for on a CBD oil label can improve the odds of finding high-quality CBD oil and other related products. 

CBD oil labels should not make any medical claims. The FDA monitors and regulates claims of medical efficacy related to any unapproved substance. The agency sent warning letters to several companies that sold CBD products with labels claiming the contents could prevent, treat, and cure serious diseases. Yet plenty of companies voluntarily follow FDA standards and prohibit unverified claims on their labels. Words such as “cure,” “prevent,” “reduce,” and “treat” can be red flags that a seller isn't operating with integrity. 

Some CBD oil labels are fraught with marketing terms and buzzwords that appear to signify medicinal value. Terms such as “organic,” “all-natural,” and even “pure” have no scientific meaning, and shouldn't be considered a sign of a trustworthy CBD oil. Products claiming to contain hemp or hemp seed oil aren't the same as hemp-derived CBD oil, and won't necessarily contain any CBD. Cannabis-derived CBD oil is produced from cannabis plants that contain more than 0.3% THC.

Most reputable CBD producers typically include the following information on their CBD product labels:

  • Amount of active CBD per serving
  • Supplement Fact panel, including other ingredients
  • Net weight
  • Manufacturer or distributor name
  • Suggested use
  • Full-spectrum, broad-spectrum, or isolate
  • Batch or date code.
cbd oil and balm
One of the most important things to pay attention to is whether a CBD product is full-spectrum, broad-spectrum, or isolate.
Photo by: Gina Coleman/Weedmaps

One of the most important things to pay attention to is whether a CBD product is full-spectrum, broad-spectrum, or isolate.

Full-spectrum means that the CBD has been extracted from a plant along with all other cannabinoids and terpenes, including whatever amount of THC the plant may have produced. Consuming full-spectrum CBD may yield better results thanks to the entourage effect, a phenomenon in which the mixture of cannabinoids and terpenes work together to produce a more pleasant experience.

Broad-spectrum means that the product contains CBD and terpenes, but has undergone additional processing to strip out any THC.

CBD isolate is pure CBD, isolated from all other chemicals, cannabinoids, and terpenes. It is commonly sold in powder or crystalline form. While CBD isolate might function as a more potent or concentrated form of CBD, it may be less effective than other types of CBD since the CBD in an isolate does not metabolize in your body alongside the other potentially important cannabinoids and terpenes. If you're concerned about legal issues or worried about ingesting THC, look for products made with CBD isolate.

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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 July 16, 2021.