If you're confused about the legal status of cannabidiol (CBD), you're not alone. Rules vary from state to state, the federal to state level and even from city to city. Even though hemp-derived CBD became federally legal in 2018, the ultra-low THC formulas remain illegal in Idaho unless they contain zero THC and are manufactured from one of the approved components of the plant, mainly the plant's mature stalks or sterilized seeds.
Any non-FDA approved CBD products with any amount of THC are still considered a controlled substance in Idaho.The only legal exception for medical CBD is Epidiolex, the pharmaceutical grade, FDA-approved CBD oil made by GW Pharmaceuticals.
When you live in a state where local laws surrounding hemp and CBD oil are stricter than federal law, it can be incredibly difficult to know how, when, and where to buy a CBD product that won't put you at legal risk.
What is CBD?
CBD is a non-intoxicating cannabinoid found in cannabis, and the second-most-prominent in the plant after THC, which is largely responsible for the intoxicating high. CBD is sourced either from marijuana or hemp plants and has a wide range of potential therapeutic benefits, including anti-inflammatory, analgesic, anti-anxiety, and seizure-suppressant properties. Most raw cannabis strains on the market today contain small amounts of CBD, especially compared with THC. But since the cannabinoid has gained considerable attention for its wide range of purported therapeutic benefits, more high-CBD strains have been cultivated recently.
Why is CBD sometimes illegal?
All types of cannabis, including hemp strains that don't produce enough THC to cause intoxication, were considered illegal under the Federal Controlled Substances Act of 1970. The law categorized all cannabis as Schedule 1, which defined the plant as a highly addictive substance with a high potential for abuse and no accepted medical use.
f The 2018 Farm Bill made hemp an agricultural commodity and its cultivation federally legal. Further, the act removed some forms of cannabis from Schedule 1 status by creating a legal distinction between hemp and marijuana. Hemp is cannabis with less than 0.3% THC, and marijuana means cannabis with more than 0.3% THC. This distinction in federal lawt effectively legalized CBD that is derived from cannabis with less than 0.3% THC, as long as it's been cultivated under federal and state regulations. However, in Idaho the state regulators ignore the federal limits. Even farmers must be licensed to legally grow industrial hemp.
Under the 2018 Farm Bill, the Food and Drug Administration (FDA) has the power to regulate CBD product labeling, including therapeutic claims and the use of CBD as a food additive. The FDA has already maintained that even hemp-derived CBD may not be added to food and beverages, or marketed as a dietary supplement. And though the organization has begun to re-evaluate some of these stances on legal CBD products, the FDA has not revised its regulations. The agency also has been strict in its stance against any labeling that could be perceived as a medical claim about CBD.
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In addition to federal regulation of CBD, the Farm Bill also gave states the option to regulate and prohibit the cultivation and commerce of CBD. States may also regulate CBD in food, beverages, dietary supplements, and cosmetic products independently, even before the FDA finalizes its policies.
Idaho CBD laws
In 2015, the Idaho legislature passed SB 1146, which would have legalized the use of CBD oil with no more than 0.3% THC for uncontrolled epilepsy. The bill also proposed legal protection for parents to obtain CBD oil out of state. The bill was vetoed by Republican Gov. Governor C.L. “Butch” Otter, who instead issued an executive order for an Expanded Access Program to allow children with intractable epilepsy to take the FDA-approved Epidiolex. Because Epidiolex was approved by the FDA in 2018, it is now legal to prescribe in Idaho.
According to Idaho code S37-2701(t), CBD and CBD products are legal only if they contain zero THC and are derived from one of five parts of the cannabis plant:
- Mature stalks of the plant
- Fiber produced from the stalks
- Oil or cake made from the seeds of the achene of the plant
- Any other compound, salt, derivative, mixture, or preparation of the mature stalks
- A sterilized seed of the plant incapable of germination
If a CBD product doesn't meet these requirements, state law considers it a controlled substance. Hemp also is considered marijuana under Idaho code S37-2701(t), which makes hemp extract a controlled substance if it doesn't meet the above requirements.
As of 2019, Idaho has yet to enact new CBD legislation in response to the 2018 Farm Bill. A bill to legalize hemp under the federal 0.3% THC standard, as well as its transportation across state lines, was passed by the House and Senate, but died when the house rejected Senate amendments to the bill.
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Licensing requirements for CBD
As the window for legal CBD products is so narrow under Idaho state law, there are currently no state licensing or sale regulations for CBD oil. Permits to sell CBD or operate a storefront that sells CBD oil are under the jurisdiction of cities, which may or may not require lab test results from prospective retailers to prove that their CBD products meet state requirements.
Sales of CBD products that don't fit legal requirements will be treated as marijuana, and therefore a Schedule 1 substance by Idaho law enforcement. Cultivation, sale or delivery of 1 pound (0.5 kilograms) or more, but less than 5 pounds (11.3 kilograms) of marijuana will receive a minimum prison sentence of one year and a $5,000 fine. The penalty for cultivating or selling between 5 and 25 pounds (2.3 to 11.3 kilograms) of mariuana is a minimum of a three-year prison term and $10,000 fine. Cultivation, sale or delivery of 25 pounds or more of marijuana results in a minimum five-years prison sentence and a maximum fine of $50,000. Maximum prison sentences for sale or delivery of marijuana in Idaho are 15 years, with a maximum fine of $50,000.
Idaho CBD possession limits and penalties
Possession of any CBD product without a legal prescription is charged as possession of marijuana in Idaho. Possession of less than 3 ounces, or 85 grams, of any product the state defines as marijuana will be treated as a misdemeanor, with a maximum one year imprisonment and a $1,000 fine. Possession of more than 3 ounces, or 85 grams, of marijuana results in a maximum five-year prison sentence with a maximum $10,000 fine.
Where to buy CBD in Idaho
Several Idaho cities have CBD retailers and storefronts, most of which claim to sell products that comply with state requirements for legal CBD oils and other products. Unfortunately, tight restrictions and lack of regulations make it difficult for consumers to know for sure whether what they have purchased CBD with zero THC as required by law. CBD oil also is available from online retailers, but it is even less likely to be in line with Idaho state legal requirements.
How to read CBD labels and packaging
The 2018 Farm Bill shifted oversight from the U.S. Department of Justice (DOJ) to the U.S. Food and Drug Administration (FDA). As the FDA slowly begins to make new regulations for CBD products, the market remains largely buyer beware. Still, the agency warns that regulations in flux still require companies to make legitimate claims on their labels.
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.