How do federal laws define marijuana?
How do federal laws define marijuana?

The cannabis plant is made up of dozens of compounds called cannabinoids. The plant’s two most prominent cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD). Each compound has different effects on the human body. THC has the renowned psychoactive effect on users for which marijuana is well known, but it can also increase one’s appetite, reduce nausea, and act as an anti-inflammatory. CBD on the other hand has a very mild or no psychoactive effect. CBD has been sought after for its ability to prevent convulsions, making it effective for treating seizures. Studies have also shown that CBD may help treat brain injuries. As CBD gains recognition as truly effective medicine, its market potential is growing rapidly. As of late, many of you have probably seen those companies, companies not even located in states with medical marijuana laws, claiming to be able to sell medical-grade CBD anywhere in the U.S. via the internet.

Given the foregoing, is CBD legal under federal law? It depends.

Marijuana is currently listed as a Schedule I narcotic under the federal Controlled Substances Act, meaning the federal government believes it to be a dangerous drug with no recognized medical benefit. Consequently, any CBD derived from marijuana violates the federal Controlled Substances Act, and the Drug Enforcement Administration (DEA) has already stated that it believes that CBD is a marijuana derivative and, therefore, a Schedule 1 drug. However, the federal Controlled Substances Act does not include in its definition of “marijuana” the plant’s “mature stalks.” These mature stalks are used to create hemp (which contains little to no THC and has not intoxicating effect). Hemp is not scheduled under the federal Controlled Substances Act and, therefore, is also not under the enforcement authority of the DEA.

Though the DEA has no enforcement power over hemp products, it does control hemp cultivation. In order to grow hemp in the U.S., you have to have a permit from the DEA which the DEA typically never issues. Therefore, cultivating hemp without a permit to do so from the DEA remains a federal crime. The only exception is the 2014 federal Farm Bill which allows state departments of agriculture, universities, and colleges to cultivate hemp without a permit from the DEA for educational and research purposes. Because of the prohibition on hemp cultivation without a DEA permit, the hemp products we see in the U.S. typically come from hemp imported from overseas. This means that companies and individuals may freely sell CBD derived from processed hemp (not from marijuana), imported from outside the U.S.

Additionally, the Food and Drug Administration (FDA) has inserted itself into the CBD market. Generally, when a company makes a medical claim about a product, that product is classified as a drug. Under the Federal Food, Drug and Cosmetic Act (FDCA), new drugs are not allowed to enter the market without first being tested by the FDA, unless they meet the definition of a dietary supplement (which doesn’t require such testing). When these types of claims are made without the requisite testing, the FDA takes action under the FDCA.

The FDA does not consider CBD to be a dietary supplement; it considers CBD to be a new drug. As a result, earlier this year, the FDA issued warning letters to companies making medical claims about their CBD products. Ultimately, among other identified violations of the FDCA, the FDA accused these companies of making unfounded medical and therapeutic claims about their CBD products by, for instance, stating that CBD is effective for treating certain kinds of cancer. The FDA gave these companies 15 days to demonstrate how they were curing violations of the FDCA or face legal action by the FDA.

Anyone undertaking the sale of hemp-derived CBD should make very clear to regulators and to its customers that its products come from imported hemp and not from marijuana. Moreover, anyone selling or making hemp-derived CBD should take great care to avoid making any medical claims about those products or else they risk facing the consequences under the FDCA.

  • Dion Markgraaff

    Almost right. Simple – at this point in time – CBD as a drug is illegal, CBD as a food is legal. DPA article was/is horrible, it’s wrong in so many ways – one of which you quote that, “cannabis ruderalis (also referred to as hemp)”. At least you are closer to the truth than the DPA article.

    • Daniel Shortt

      Thanks for participating in the discussion.

      In Hemp Industries Ass’n. v. Drug Enforcement Admin., 357 F.3d 1012 (9th Cir. 2004) the 9th circuit ruled that “THC naturally-occurring within non-psychoactive hemp products did not fall under the DEA’s regulation.” I agree that CBD products, derived from hemp, are legal, but I don’t think the distinction is based on whether the product is “food.” The dispositive issue is where the product is derived, not what the product is. That being said, CBD marketed as a drug or dietary supplement is illegal because it runs afoul of the FDAC.

      In terms of the DPA article, I have removed the quote from this blog post. I agree that it mischaracterized cannabis ruderalis. From what I understand, ruderalis is a species or sub-species of cannabis, while hemp is a phenotype of cannabis.

  • Angalee Jones

    CANNABIS/MARIJUANA is the most nutritious food on the planet and should be treated that way. Smoking it is only 1 of over 50,000 ways to use cannabis …it’s 114 times safer than alcohol it should in no way be restricted…marijuana does not cause crimes…if someone is harmed it’s not the marijuana it’s the person responsible…..not a plant.

  • Eric DeWeese

    Any thoughts as to why some Colorado companies are obtaining 2014 Farm Bill permits to grow industrial hemp through the CO DOA but not selling products derived from that hemp outside the state? If it is legal to process imported hemp and ship those products interstate, and legal to grow hemp under that program, it seems like it would be equally legal to ship those products, yet they seem to be taking a very cautious approach.

  • JRH

    I really appreciate the article and I have a question that is along these lines. If I have access to raw industrial hemp through local farmers in my state (CO), can I use that in the production of food and/or beverage products (the plan is to infuse CBDs, yet ensure the final products are 100% THC-free)? This article seems to assert that the hemp materials need be imported in order to be legal at a federal level. I have been having a lot of trouble getting an answer to this question, so any help anyone may be able to provide would be greatly appreciated. Thanks! -JRH

  • Healing the World

    I really appreciate the article. While CBD oil is not approved by the FDA, please keep in mind that it is made from a plant and not a chemical like other perscription drugs. The FDA approves many drugs which then later deems them unsafe, dangerous with many side effects. You can’t trust the FDA.

  • Melissa Kennelly

    Thank you for posting this discussion. Your reference to the term “hemp” in this article appears limited to the mature stalk of the cannabis sativa plant. I agree that anything derived from just the mature stalk (or seeds) is excepted from the Controlled Substances Act and therefore legal. However, the term hemp is often used to include the entire cannabis sativa plant, albeit a low THC strain that is grown mostly for its stalk fiber. When one grows hemp, they grow the whole plant. It’s worth clarifying that the CSA criminalizes products derived from the leaves and buds of any cannabis sativa plant, whether it’s a low THC hemp plant or a higher THC “marijuana” plant. I understand that CBD companies make their products from the whole plant, which would make those products illegal under the CSA. That said, distribution and possession of imported CBD products would seem to be prohibited under the CSA unless the companies make their products from only the stalk and seeds.