Is CBD Legal?
At the local convenience store, in my small town in the middle of cannabis prohibition America, there are an array of CBD products for sale. It’s locally owned and operated, and next to the register there are a few large, glass display cases. In it, they sell hats, headphones, wallets, vapes and vape batteries. I’ve seen grinders for sale in the past, and if I remember correctly, glassware. A few months ago, I was surprised when I noticed that they had a Snoop Dogg branded vape for sale with an attachment that was obviously meant for dabbing.
Growing up under widespread prohibition, I’m not unfamiliar with gas stations and convenience stores selling things that aren’t strictly “legal” and the authorities turning a blind eye, but I was surprised to see CBD products so blatantly displayed for sale at our local stop. Calming CBD gummies and smokable hemp sticks that tout “0% THC” alongside CBD dog treats and topicals. I’m a big fan of CBDs and seeing these items in my conservative town are a little bit of a good sign, in my opinion, but it also makes me nervous. Maybe it’s because I live in such a small, rural area, but the cannabis culture here is covert. Keep your head down, keep your cannabis use as private as possible, and for the most part, people will leave you alone. Because of this, I couldn’t fathom buying any of the CBD products from them, simply because I didn’t trust it.
Both of the CBD products are labeled as hemp, 0% THC and high CBD content, which led me to wonder about the legality of hemp on a state to state basis and whether these CBD products were legal or illegal in any way.
Hemp can be confusing, so let’s break it down a little here. Cannabis is a genus of flowering plants. There are three primary species; cannabis sativa, cannabis indica and cannabis ruderalis. Ruderalis is probably the least known, has a naturally low THC content. Now, I am in no way a cannabis expert, biologist, scientist or legal specialist, but in my research, it seems that all hemp is cannabis, but not all cannabis can be considered hemp. Did that make sense? I didn’t think so, so let’s break it down some more.
It’s become commonplace in our society to refer to cannabis in two ways; hemp or “marijuana”. If you’re a cannabis enthusiast, you likely know the history of the term “marijuana” and why many in the industry choose not to use it (and if you don’t, I’d suggest a fun cannabis history adventure!), but for now, I’ll be using hemp and “marijuana” to discuss the differences and legal gray areas.
From what I’ve gathered, hemp is any species of the cannabis plant that contains .3% or less THC, but is often thought of as a separate species of the plant. It seems that this difference is purely legal; “marijuana” gets you high and is illegal, hemp cannot and is (technically) legal. The Agricultural Improvement Act of 2018 (Farm Bill) amended the Agricultural Marketing Act (AMA) of 1946, making hemp a legal, agricultural commodity to be regulated by the USDA and removing hemp from the list of controlled substances (Controlled Substances Act, CSA). States that have voted in hemp agriculture are required to submit hemp “plans” to the USDA over a year long transition period that must include things like information on the land, procedures for testing THC content and disposing of product that exceeds the legal THC limit. Perhaps the
most significant part of the 2018 Farm Bill is that it legally redefined the term “hemp” to be based solely on THC content (less than .3% on a dry weight basis). This defining of “hemp” and “marijuana” based on THC percentage means that hemp derived CBDs would not violate CSA, however synthetic CBDs or CBDs from a “marijuana” plant could still be considered a controlled substance. Furthermore, FDA Commissioner Scott Gottlieb has said “it’s unlawful under the [Federal Food, Drug, and Cosmetic Act] to introduce food containing CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.” To sum it up, CBD or THC in food or dietary supplements are illegal, whether or not the CBD is derived from legally cultivated hemp.
On Monday, June 8th 2019, Governor Greg Abbott of Texas signed a law (HB 1325) legalizing the manufacture and state regulation of industrial hemp and hemp-derived products in Texas. A notorious cannabis prohibition state, Texas is one of the last states to adopt industrial hemp production after the federal government’s removal of hemp from the CSA list, following suit by removing hemp from the state’s list of controlled substances in April. Although hemp was removed from the state’s controlled substances list, until Gov. Abbott signed the hemp bill into law, Texas state law still legally defined hemp and “marijuana” as the same, both controlled substances under the law. It is still illegal to grow in Texas until the Texas Department of Agriculture (TDA) has submitted its plan to the USDA and must “wait for guidance from USDA on implementation procedures related to the 2018 Farm Bill hemp provisions.” TDA must wait for this “guidance” from the FDA before submitting their official plan – that must include their testing procedures, land surveys, etc. – and are expected to receive word this fall and anticipate the application for hemp growing permits to begin in 2020. It seems that although Texas has taken a step forward in the eyes of cannabis activists, the process of implementing hemp cultivation on a state-wide scale is going to be tedious.
According to a local article, it wasn’t uncommon for Texans to see CBD products, such as oils, tinctures, topicals etc, for sale prior to the law being signed, but if those products contained even a trace amount of THC, they were illegal. This new law expands the kind of hemp products that can be legally produced and purchased in the state to include and hemp or hemp-derived products containing less than .3% THC.
So in my case, if I were living in Texas, the smoke-able hemp sticks, as long as they contain less than .3% THC, are perfectly legal. The CBD gummies, on the other hand, are another gray area. According to Gottleib, it’s “unlawful”, but the Texas Department of State Health Services (DSHS) website states that the FDA has approved CBD as a prescription drug that cannot be added to food, cosmetics or dietary supplements and that the FDA may “take actions on it’s own relating to the ingredients in food, drugs, cosmetics and dietary supplements.” Texas may now be turning a blind eye, or at least a state-regulated eyes, on consumable CBD, but the federal government may still swoop in and declare you a lawbreaker.
I think it should be noted here that there are currently three hemp-derived products on the FDA’s Generally Regarded as Safe (GRAS) list of ingredients that can be used in the products
the FDA regulates. Those products are hemp seed oil, hemp seed protein and hulled hemp seeds, all of which contain insignificant amounts of CBD and are typically consumed as pretty average cooking ingredients. Although it could be argued their health benefits are anything but typical.
Now, if CBD and hemp regulation is so convoluted at state and federal levels, what does that mean about buying CBD products online? Can you get a reliable CBD topical on Amazon?
It appears that the most recent Amazon policies regarding drugs and drug paraphernalia doesn’t prohibit hemp, only products “containing cannabidiol” and still consider CBD a Schedule 1 Controlled Substance. They specifically list Rich Hemp Oil containing CBD, full spectrum hemp oil containing CBD and “products that have been identified as containing CBD by LegitScript”. They also include germinating hemp seeds and products that contain Resin or THC.
A simple search for “CBD” on Amazon yielded over 9,000 results for gummies, oils, topicals and more. Time for a quick science note; CBDs are found most abundantly in the flower and leaves of cannabis plants, though some can be found in the stalk and stems while the seeds contain little to no CBD content. Hemp seed oil is made from pressed and processed seeds whereas hemp extract is typically made from flowers, leaves, and occasionally whole plants. What I’ve found is that sellers on Amazon have been able to bypass the “No CBD” policy by simply not saying that their product contains CBD.
How do you know you’re getting a true CBD product? To be honest, I don’t think you can know, but there are some things to look for. Make sure your product is made with hemp extract and not hemp seed oil, as hemp extract is typically made from the CBD rich flowers and leaves. Look for miligram listings. If there aren’t any, it’s likely your product isn’t as legit as you were hoping. In my opinion, CBD products on Amazon are a lot like trying any product for the first time; trial and error. If you know what to look for you’re less likely to be sold an expensive bottle of cooking oil with a pretty cannabis leaf label.
Am I more likely to buy some CBD gummies at my local convenience store now? Probably. Does that make it any less federally illegal/unregulated? Nope. At the very least, I hope I was able to give you the knowledge to scrutinize the CBD products at your corner store, assess the CBD and hemp laws and regulations in your community, and not buy snake oil on Amazon.
Laura Mastropietro, former cannabis co-op grower and patient advocate, consultant, Edible Chef for two edible lines, featured in ‘Cannabis Saved my Life’ by Elizabeth Limbach, currently curates a learning hub called PotofWellness.com, stays active in the cannabis community while running a restaurant and commercial bakery in beautiful Sedona Arizona. Wife, Mother, Grandmother, with a full beautiful life and toss in a life altering disease, cannabis is the magic that helps her keep it all going. Have a cannabis question? Send it to Dear Mama at potofwellness@gmail.com