What is the Current Legality of CBD Oil?
I usually get to start of my posts with a disclaimer that I am not at Vet. This time I get to tell you that I am not a lawyer! This is not legal advice, but it is some of the research we’ve turned up.DogsCBDguide.com
The short answer is you can get CBD with less than 0.3% legally shipped in most of the 50 states. You can see our recommended CBD for dogs stores here.
Depending on where you live, you may regularly be spotting green cross signs at new businesses along the roadsides. And regardless of your location, chances are good you are hearing a lot of people talking about buying cannabis, hemp and CBD products.
If you are thinking about purchasing CBD oil for yourself or for your pet, you may still have some questions about its legality.
After all, the legality of CBD has been in a grey area for a long time, and the regulatory changes certainly haven’t come overnight.
In this article, we are going to go over the recent legal developments which concern the sale of hemp and CBD products to consumers.
We will then help you to navigate the laws in your state while shopping for CBD oil for yourself or your dog.
Last Year, the 2018 Farm Bill Passed
One huge development which took place last year was the signing of the Agricultural Improvement Act of 2018, more commonly referred to as the “2018 Farm Bill.”
What did this bill do? It made it legal for farmers who have obtained appropriate licensing to grow hemp and sell it across state lines.
Now, you would think that would be that, right? CBD usually is extracted from industrial hemp products. Hemp is legal, therefore CBD must be too, right?
Alas, it is not so simple.
The DEA Has Still Not Changed Its Mind About CBD’s Drug Status
The problem concerns the status of CBD specifically as determined by the US Drug Enforcement Administration (DEA). (see source here)
A lot of people who are new to CBD, hemp and marijuana use the terms interchangeably, but they are not the same thing.
- Marijuana is a plant in the Cannabis Sativa family which contains high concentrations of THC.
- Industrial hemp is a plant in the Cannabis Sativa family which contains much lower levels of THC.
- CBD stands for “cannabidiol.” It is a cannabinoid found in cannabis plants which may have a wide range of benefits for health.
You can read more about these distinctions in “Hemp CBD Oil vs. Marijuana.”
So here is the bizarre thing. With the 2018 Farm Bill, hemp is no longer classified as a Schedule I drug. But the DEA has not changed the classification for CBD. CBD is still a Schedule I drug.
Indeed, cannabis (excluding hemp) itself retains this Schedule I status.
What is the thinking with not removing the Schedule I status for CBD? It probably has to do with marijuana.
Basically, the DEA figures that CBD can be derived either from hemp or marijuana. Since marijuana remains a Schedule I drug, it has decided that this applies to all compounds from marijuana, including CBD.
The fact that most CBD on the market is derived from industrial hemp seems to be a nuance not yet clearly accounted for within the legal framework.
I say “clearly,” since many people do interpret the new rules to mean that if the CBD product you are purchasing is derived from industrial hemp, then it is legal. If it isn’t, then it is not.
To give you a reference for this, WebMD explains, “Most experts believe the Farm Bill makes it clear that consumers anywhere can legally buy these products if they’re made from low- or zero-THC hemp. But that could change if your state’s lawmakers explicitly act to ban them.”
“But wait. I heard that the FDA rescheduled CBD back in September 2018!”
There was a rescheduling involving CBD which took place in September of last year. Many outlets widely reported that CBD’s Schedule 1 drug status had been removed.
In reality, this only applied to certain FDA-approved drugs.
Here is the language reported in the Federal Register:
“With the issuance of this final order, the Acting Administrator of the Drug Enforcement Administration places certain drug products that have been approved by the Food and Drug Administration (FDA) and which contain cannabidiol (CBD) in schedule V of the Controlled Substances Act (CSA). Specifically, this order places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols in schedule V.”Federal Register
It didn’t help to clarify matters at all that a spokesperson for the DEA named Barbara Carreno reportedly said to Business Insider that within 90 days, CBD would be classified as Schedule 2 or 3.
Apparently though, she was talking specifically about a drug named Epidiolex.
WebMD says, “Within days of the Farm Bill becoming law, the FDA issued a statement saying any hemp-based CBD product that is marketed as having therapeutic benefits or as a dietary supplement is illegal to sell unless the FDA has reviewed and approved it.”
That might sound bad at a glance, but look at the bolded text. This type of language actually is no different from what we see concerning other types of supplements.
It seems to imply that the FDA is open to hemp-based CBD products, so long as they do not violate the FDA’s rules regarding health claims and the FDA has specifically approved them.
As of right now, “FDA approved” are two words you won’t be running into a lot while investigating options for CBD for dogs.
This isn’t because there are not high-quality products out there which deserve an FDA stamp of approval. It is simply because it is so early in the process that companies haven’t really had a chance to have the FDA review their products for approval.
Some States Have Legalized Cannabis and/or CBD
Now we have talked about the federal aspect of CBD legality, so let’s talk about what has been going on at the state level.
You are probably well aware that a number of states have taken action in recent years to legalize marijuana.
There are also a few states which have gone out of their way to completely ban it.
- If you are in a state where marijuana is legalized, CBD products are legal.
- If you are in a state where marijuana is banned, you are hypothetically buying CBD at your own risk.
- If you are in a state which has neither legalized nor banned marijuana, you probably are still purchasing CBD at your own risk.
How much risk is that? WebMD quotes attorney Todd Harrison as saying, “I think there is very little risk for consumers … I don’t think the states are going to take action against the consumer.”
I can’t give you legal advice, but hopefully the above gives you some perspective to inform your decision to buy CBD products online or at a local store.
Is CBD Oil Legal in My State?
According to The Street, here are the states where marijuana has been legalized for medical and recreational use:
Marijuana has also been legalized recreationally in the District of Columbia.
As a point of interest, in theory, the federal government can act against the states for legalizing marijuana, since it is still illegal on the federal level, which supercedes the state level.
WebMD says, “… Even though many states have legalized its use, the federal government still considers marijuana and CBD products derived from marijuana in almost any form to be illegal. But so far, federal law enforcement officials have not used their power to swoop in and shut down marijuana operations in states that have legalized it.”
Here are the states where marijuana has been legalized for medical use only:
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Dakota
- Rhode Island
- West Virginia
In the following 14 states, CBD is legal for medical purposes under specific requirements:
- North Carolina
- South Carolina
These three states have a full-on ban in effect on marijuana:
- South Dakota
What happens if you try to purchase a CBD product in a state which has an explicit ban on marijuana products?
As you’ll recall, WebMD commented on this as well in one of the quotes I shared previously. They stated specifically that the Farm Bill should mean that you can purchase CBD products made from hemp which is low in THC, but that some states may decide to widen their ban from marijuana to extend to hemp products as well.
If that happens, purchasing CBD products in those states would be illegal.
Summarizing What We’ve Learned
As a reminder, I am not a legal expert, and I cannot give you legal advice. I cannot even interpret what we have gone over and draw any firm legal conclusions. Indeed, I suspect many legal experts even struggle in this regard.
But here is a summary of what I personally have gleaned from the above:
- The 2018 Farm Bill specifically has legalized growing and selling hemp across state lines. That means cannabis containing minimal THC, not marijuana.
- The DEA has rescheduled “certain drug products” containing CBD, but has not rescheduled CBD, cannabis in general, or marijuana specifically. They are still classified as Schedule I substances.
- “Most experts” interpret the combination of the above to mean that CBD products made from industrial hemp are legal on the federal level, but not those derived from marijuana.
- The FDA has said that for a hemp-based CBD product to be legal, it must not promise therapeutic effects, and the FDA must approve it.
- The legality of marijuana and CBD at the state level varies from state to state.
- In theory, the federal government could act against states which have legalized marijuana, but thus far has taken no such action.
- There are several states which have banned marijuana, but they haven’t yet extended their ban to hemp-based products. If they do, buying hemp-based CBD in those states would be illegal.
- To reiterate what attorney Todd Harrison said, “I think there is very little risk for consumers … I don’t think the states are going to take action against the consumer.”
Based on all of this, I personally feel comfortable and safe purchasing high-quality CBD for my pet, myself, and my family.
I also feel optimistic that the regulatory framework should become more clear over time, and that more and more doors are going to open to both producers and consumers of CBD products.
Tips for Shopping Legally for CBD Products Online
While I cannot legally advise you over whether or not you can or should purchase CBD, I can at least offer a few suggestions to help you stay compliant with the law if you decide to do so:
- Do your research on the federal, state and local laws that affect you as a buyer. The better informed you are, the less likely you are to take any unintentional missteps.
- Remember that the laws are changing. Do not assume that what was true a year ago or even six months ago is necessarily true today. Check regularly for updates.
- Avoid products which make illegal claims. Remember, the FDA is quite specific about this. Plus, sellers whose claims are un-provable tend to be less honest and reliable anyway. Stick with those that are as transparent as possible.
- Make sure you are buying products made from hemp. A lot of sellers are very clear about this. Many even provide detailed information about the hemp plants they source their CBD oils from on the website.
- Check the THC levels of the products you are purchasing. Ideally, you may even be able to view third-party laboratory testing which verifies exactly how much THC is in the products you are purchasing. There should be trace amounts only. This is important with any CBD product, but when you are shopping for CBD for a canine, it is crucial.
- Contact customer service with unanswered questions. If you still have questions about the legality of the CBD oil products you are thinking about buying, get in touch with customer support. Reputable companies will be glad to take the time to patiently and thoroughly address your concerns.
Conclusion: CBD’s Legal Status Remains Murky, But Things Are Looking Up
If you feel confused trying to navigate the landscape of CBD legality, you are far from alone.
There probably is nobody who isn’t legitimately confused right now, including among those in the government.
Regardless, on both the federal and state levels, we are continuing to see more and more favorable legal changes for hemp, CBD and marijuana.
We are guessing that means that CBD products for dogs and humans alike are only going to become more and more popular.
That means an increasingly wide selection over the years ahead.
We may not be able to offer you legal advice, but we can point you in the direction of the highest-quality CBD products for dogs based on our research and experience.