From cupcakes to lube, toothpicks to dog treats, there’s a CBD-infused version of just about everything these days.
But while CBD products may be fun and trendy, what many people don’t realize is that the legality of CBD products is murky at best. The more you get into the weeds of it, the hazier the line between what is and is not safe becomes.
So, while CBD is widely considered safer than cannabis because it generally has no intoxicating effect, the laws around it are actually much more complex than those concerning THC.
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To save you some time (and sweat) we at GreenState rolled up our sleeves, unpacked the reports, and spoke with experts to create a comprehensive guide to U.S. CBD law – the good, the bad, and the ugly. Here are the top five things you should know before purchasing CBD products in the U.S.
1. CBD is federally legal. Full stop. But, the confusion is “legal for what purpose?”
Thanks to the 2018 Farm Bill, the production, possession and sale of CBD products is legal in the United States. The Farm Bill distinguished hemp from cannabis, meaning CBD products are not considered drugs unless they contain over 0.03% THC, and can therefore be used and distributed legally.
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It’s important to note, though, that CBD is still federally illegal when it is infused into food or labeled as a dietary supplement. And, of course, all CBD products must contain less than 0.03% THC.
So yes, CBD is legal, but if you’re selling it to others, all you can really tell them to do with it is rub it on themselves. That’s because putting it in food hasn’t been regulated yet.
2. The catch? CBD is not federally regulated
Any legal product must still abide by certain federal regulations. This is a good thing – it means you won’t find arsenic-infused lip balm at the drugstore, for instance. Unfortunately, though, regulations require a lot of time and research to back them up.
After the Farm Bill was passed, the U.S. Food and Drug Administration promised to create regulations to ensure the safe production and sale of CBD. However, since CBD is a relatively new product to rise to popularity in the U.S. market, and since cannabis is still a Schedule I drug, and since there are relatively few studies conducted on CBD, among many other factors, the FDA has yet to produce any regulations concerning CBD.
3. Because it is not federally regulated, the FDA has little power when it comes to enforcing safe practices on CBD companies
Without regulations, the U.S. CBD market is a Wild West. Since the FDA has failed to create rules regarding the production and sale of CBD, it cannot enforce safe practices on the industry.
The unfortunate result is that CBD industry has become a mix of ethical sellers and people who see the lack of regulation as an opportunity to get rich quick off cheap, potentially harmful products. (For instance, some CBD brands contain more THC than advertised, or fail to disclose their ingredients altogether.)
The FDA has sent some warning letters out to several CBD companies, but only those that make broad, unsubstantiated claims concerning their product (such as falsely advertising it as a treatment for COVID-19. It’s obviously not.) While they have no regulations on CBD specifically, the FDA still has the power to crack down on any company marketing health claims not backed by research.
4. To fill the gap, some states have taken regulations into their own hands
If that wasn’t confusing enough, buckle up.
Because of the lack of federal regulations on CBD products in the U.S., some states have taken matters into their own hands. The result is a patchwork of wildly complex CBD laws throughout the U.S., with nearly zero states having exactly the same laws on CBD. In summary: It’s chaos.
Distrust in this under-researched, unregulated product led Nebraska and Idaho to completely ban CBD (with the exception of CBD isolate–i.e., CBD without any THC added.) On the flip side, some states are making an effort to lay down their own CBD regulations to make up for the FDA’s lack of action.
In California, for instance, a bill is currently moving through the state’s legislature that would legalize the sale of foods, beverages, and dietary supplements containing CBD. Andrea Golan, an associate attorney of the Los Angeles office of Vincente Sederberg who works with hemp practice groups, said the booming CBD industry in California has sparked an increased sense of urgency around the bill.
“There’s optimism the bill could pass this year,” Golan told GreenState. “There are a lot of opinions about that – the bill has been in the political crosshairs for sure. But it’s purely economics. There are a lot of big players in this industry and they want to get into the California market, and they want to do it lawfully.”
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But even states that are regulating CBD sometimes do not have the time, resources, or know-how to enforce their own laws. Law enforcement often doesn’t have the time to prioritize it, so enforcement is inconsistent. Because of this, it’s not hard to accidentally use a CBD product that was sold illegally in your state.
A few important things to keep in mind in any state are:
- The possession and consumption of CBD isolate is legal, regardless of what state you’re in. But, see the next bullet point for clarification.
- Adding CBD to food is legal when done in the home. It is when companies sell CBD food and beverages that they become illegal under federal law. (The problem with putting CBD in food is the FDA already decided cannabis was a drug. It approved a cannabis treatment for seizures called Epidiolex. Once it did that, any use of the same “drug” as a dietary supplement cannot be allowed without research and full regulations. If the FDA had not bothered to consider CBD as a drug, we could all be eating CBD Doritos right now. Blame Epidiolex for the fact that CBD isn’t allowed to be marketed for consumption in food and drinks.)
- The sale of CBD is legal for medicinal purposes in most states, but, like with cannabis, fewer states permit the sale of recreational CBD.
To ensure that you are using CBD in a way that is in compliance the law, take some time to research your state’s regulations on CBD.
5. A few things that could soon make CBD law more standardized in the U.S.:
There are, however, a few ways Americans could soon breach the spinning vortex of confusion that is U.S. CBD law today.
Congress is pushing the FDA to regulate CBD on the federal level as soon as possible. Their most recent attempt is a bill that would allow CBD to be sold as a dietary supplement throughout the U.S., and it has support from representatives on both sides of the aisle.
Another measure that would effect CBD is the bill to decriminalize cannabis, which will soon be introduced to the Senate. If the bill passes, CBD could be legally sold as a dietary supplement, and CBD edibles would also become legal at the federal level.
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Finally, if cannabis is removed from the list of Schedule 1 drugs and more research is conducted on the crop, the FDA may be able to regulate CBD more efficiently. Jody McGinness, Executive Director of The Hemp Industries Association, a non-profit trade group representing hemp companies, says improvement on the 2018 Farm Bill is critical to raising the CBD industry to its full potential.
“It’s not about changing laws, it’s about getting regulations to make CBD products already on the market safe and standardized,” McGinness said. “We want to see the .03% THC cap that defines hemp to be more practical for farmers, because anything that’s bad for hemp farmers is bad for everything upstream. We also want to strip the part that bans anyone with a felony drug conviction from holding a hemp business license. The war on drugs unfairly targets communities of color, so a ban like that is an institutional roadblock to increasing diversity in the industry, which is a loss for us all.”
All to say, do your homework before you purchase CBD products of any kind. CBD regulations vary wildly by state, so check what regulations are in place in your state concerning recreational and medicinal CBD sale and use. And, for your safety, be sure your CBD products are transparent with their ingredients and third-party tested before use.
Elissa Esher is Assistant Editor at GreenState. Her work has also appeared in The Boston Guardian, Brooklyn Paper, Religion Unplugged, and Iridescent Women. Send inquiries and tips to elli.esher@hearst.com.