States and cities have been changing their attitude toward marijuana and hemp for a long time. They seem to be moving in a process that leads from decriminalization to legalizing medical marijuana and continuing from there.
Is the Federal Government keeping pace with this progress? They’ve certainly made some headway on CBD products. The legalization of CBD oil and similar cannabinoid products is controlled at the Federal level by a law passed in 2018.
Learn what that law has to say about CBD oil and how it has impacted access to CBD products in the years since it was passed in this guide to the legality of CBD at the Federal level.
The Difference Between Hemp Products
Ever wonder why governments and state legislatures go through such pains to separate one kind of hemp-derived product from all the others? The answer is tetrahydrocannabinol, or THC. It’s a compound in the cannabis plant that causes the psychoactive reaction - THC is why marijuana makes you high.
Because of these psychoactive effects, THC is a Schedule 1 drug under the Controlled Substances Act.When it comes to CBD oil and other hemp products, the main criteria for legality is the THC content they contain. You’ve probably seen CBD oils with labels stating that they’re THC-free. That’s because in the eyes of many jurisdictions, the less THC the better.
It’s not only the Federal government that has codified this restriction. Some states have limited how much THC content CBD oil is allowed to have while others have banned the sale of the product completely.
The Agricultural Improvement Act Of 2018
Better known as the Farm Bill, the 2018 AIA is the main regulation of both small farm and industrial hemp production in the United States. The 2018 Farm Bill “removed cannabis and derivatives of cannabis with extremely low concentrations of the psychoactive compound THC from the definition of marijuana in the Controlled Substances Act.”
How low is the threshold for THC? According to the Farm Bill, legal hemp and CBD products have to contain less than 0.3% THC on a dry weight basis. Dry weight basis means the moisture has to be removed from the hemp before it is weighed. The percentage by weight of THC to the rest of the hemp must be 0.3% or less.
This standard for what the federal government does and doesn’t control under Schedule I has created a bit of confusion for hemp producers. The law was meant to target the people who grow hemp, not the people who extract it. Nevertheless, it seems to apply to people who make hemp extracts as well.
Based on an Interim Final Rule from August 21, 2020, if a hemp product ever exceeds that o.3% limit, it’s controlled by the DEA under Schedule I. Regardless of what stage in the process of cannabidiol production, hemp plants are subject to Federal Law as set out in the Farm Bill and Interim Final Rule.
The Food And Drug Administration (FDA) set out a specific way for extractors to measure the amount of water in a sample, determine the mass of THC in the liquid, and then figure out the THC level of the cannabis Sativa extract from that.
These are rules for the supply side of CBD oil production. When it comes to purchasing CBD oil, consumers still need to make sure they’re not accidentally in possession of an illegal drug by buying only hemp products with less than the legal limit of THC.
The Farm Bill still leaves the ultimate authority for controlling the legal status of hemp to the individual states. State laws on CBD oil are allowed to be more restrictive than what’s set out in the 2018 Federal law. In a few states, growers and extractors are held to lower limits of THC, while other states have outlawed the sale of CBD oil altogether, at least in the past.
That can make it tricky if you want to transport your CBD oil over state lines. Federal law enforcement isn’t likely to be involved, but you could get in trouble if you try to sell CBD in a state where it’s outlawed.
Where Is CBD Oil Illegal In The United States?
Remember that laws change over time and this information might not be up to date. Check with the relevant state before attempting to transport CBD oil over state lines. At the time of writing, the following states had legalized CBD oil according to the Federal limits or higher:
Washington, D.C, has also legalized CBD oil by these standards. On the other hand, the following states have made CBD oil legal with additional qualifications or restrictions:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Dakota
- Rhode Island
- South Dakota
- South Carolina
- West Virginia
As you can see, although CBD oil with a THC content beneath 0.3% was made Federally legal by the Farm Bill, you still have to do some research to find out its current status in specific states.
For now, the FDA has only approved one prescription medication for use. It’s called Epidiolex and it is generally used to treat seizures caused by various disorders. Epidiolex doesn’t have any THC content so it won’t cause any psychoactive reaction. However, according to the linked study, it could make the patient test positive on urine screenings for drugs.
The FDA will probably continue reviewing such products for approval in the future. According to their website, however, it sounds like they’re more concerned with preventing consumer harm from companies advertising CBD products in ways that go against the Federal Food, Drug, & Cosmetic Act.
They appear to be well aware that hemp products like CBD oil are popular and represent a huge market. But since their legal status has only been definitively decided very recently and the number of manufacturers has soared, the FDA still has some catching up to do.
Are CBD State Laws More Important Than Federal Laws?
Each set of laws governing the use of CBD has situations where it’s more relevant. In terms of moving CBD over state lines, Federal law generally controls. If you stay in one state for the duration of the purchase and use of your CBD product, then the laws of that state are probably going to be the important ones.
Federal law does govern when it comes to the safety of citizens and consumers. For example, the FDA issued warning letters to companies who had “illegally marketed drugs as containing CBD.” Though many CBD products are classified as dietary supplements as far as the FDA is concerned, they can step in when products are sold or marketed as being drugs when they are not approved by the FDA as being safe and effective for the purposes the company claims.
So there are some times when Federal law will step in where laws at the state level can’t or simply haven’t been written to. As to whether one of them is more important, they work in tandem to create the CBD regulatory scene we have today.
Are CBD Laws Tied To Medical Use Laws?
As you can see from the strict limitation of THC content in legal CBD products, lawmakers have been careful to separate cannabidiol from medical marijuana and other products. In that sense, medical marijuana laws and CBD laws are separate from each other although they intersect somewhat.
While the legal definition of hemp differentiates it from the marijuana plant and medical marijuana based on its THC content, that doesn’t mean THC is illegal in all jurisdictions. At the time of writing, 36 states have legalized medical marijuana and one additional state, Iowa, has done so with limitations on the amount of THC that can be administered to a patient in a given day.
Still, other states have legalized THC for recreational use and some have gone so far as to make it legal to cultivate marijuana plants in the home, although most have limited the number of plants allowed or required growers to obtain licenses to legally cultivate.
So while they both stem from the same plant and hemp is legally defined in terms of its THC content, there are typically different laws governing medical marijuana use and hemp products like CBD oil.
Is CBD Legal For Federal Employees?
There are stories about people taking supposedly THC-free CBD oil and then testing positive for THC when their employer asks for a drug test. It happened to this Federal law enforcement officer in 2019. Marijuana is still very much illegal federally. Legal professionals in many states that have legalized medical or recreational marijuana use are faced with the difficult question of whether Federal law supersedes.
According to one study published in March 2020, “acute dosing of pure CBD will not result in a positive urine drug test using current Federal workplace drug testing guidelines.” But the study also mentions that CBD products that do contain some THC could lead to a positive drug test. So there is a definite risk of failing a drug test at work even if you’ve only taken CBD products and not smoked any marijuana.
Make sure you know exactly what’s in your CBD products. You can do this by researching and also by obtaining a certificate of analysis with your purchase. Sometimes you can call the company and obtain a COA before you buy to make absolutely sure you’re getting a THC-free product. It also helps you see what else is in the CBD product besides cannabidiol.
Even then, it might be risky. If you want to be extra careful, consider talking with a supervisor or HR and ask what the position is on CBD oil use among employees. Maybe they have some advice or perhaps your workplace has a detailed policy that can guide you through your CBD usage.
Can Regular Employers Restrict CBD Oil Usage?
Some jurisdictions require drug testing and others don’t. But where they don’t make drug tests mandatory, laws generally give employers of all kinds the authority to ask for a drug test. There are often restrictions on the way they can ask for drug tests depending on the jurisdiction.
For example, in some places, employers are forbidden from blanket testing the entire workforce and may be required to have probable cause - such as a workplace accident - to demand an employee submit a drug test.
Regardless of the specifics, employees generally have the right to ask for a drug test at least in certain situations. But does that mean they can also limit the amount of CBD oil employees can take?
As with so many other things, it just depends on where you are. Some states have disallowed zero-tolerance policies and others haven’t. Very broadly speaking, states that have legalized medical marijuana seem to be the ones that need to prevent employers from forbidding it outright.
The company itself also matters. Some employers won’t ask about it unless there’s an accident or someone shows up for their shift intoxicated. Others could have a stricter policy depending on the decision-makers there.
We’re not legal experts here so don’t take any of this as advice or instructions. It’s more meant to present a general idea of what people are saying about CBD oil. If you’re concerned about the risk of its legality, the best person to ask would be a lawyer. Some might be able to help you if your employer is going against the relevant rules in their CBD use policy.
CBD oil and other hemp-based products have many uses. They can help you relax, sleep better, and reduce pain. If there’s anything you can take from this guide, though, it’s that you should do your research about your specific area before you jump into a CBD regimen.
The laws governing CBD oil at the Federal level changed with the 2018 Farm Bill. In the bill, hemp products with 0.3% or less of THC content were removed from control under Schedule I. Because of this, CBD oil became legal as far as the federal government is concerned.
But states still have the power to make laws that are more restrictive than the Farm Bill. A few have banned CBD oil completely while others have insisted it be completely THC-free. On the other side of the policy debate are states who have legalized CBD oil and medical marijuana.
Some have even legalized it for recreational use and allowed their citizens to cultivate a few marijuana plants. Navigating this complicated system of laws and regulations can be confusing. You don’t want to wind up fined or in jail for possession.
That’s why we always recommend you do your research and talk to legal professionals to find out about the laws governing CBD oil and marijuana in your area. With a little planning, you can get all the benefits of cannabidiol and still stay within the letter of the law.