Skip to main content

Is CBD Hemp Oil Legal?

12 June 2017 by Austin Nordyke

DEA Says, “Cannabinoid Oil Is Not Legal In All 50 States”

When it comes to stories that inspire, we will remember the one of Charlotte Figi. In turn, these stories can also become major financial gains for certain companies. Dr. Sanjay Gupta, shined light on CBD oil when he mentioned that Charlotte Figi encountered major positive results from severe epilepsy after using CBD oil. In turn, companies have been desiring to capitalize on this opportunity by claiming that their “hemp-derives CBD oil” is legal in all 50 states. To some shocking levels, the DEA certainly does not look at it at that way.

One manufacturer claims[1] his companies CBD oil is “extracted from hemp plants grown in Northern Europe.” Due to this, he claims it is legal in the U.S. His reasons are that “Hemp oil has been a legal import to the United States for decades.” With this in mind, many manufacturers are masking CBD oil is “legal” by associating it with “hemp oil.” This is where black and white becomes grey and manufacturers have taken advantage of this mentioning “CBD oil” is legal because of the “legality of hemp oil.” What is true is that, indeed, hemp oil has been legal for decades in the U.S; however, CBD is a different legal story.

Do you want to know a fun fact? When it comes to the battle of banning hemp related products, it goes back as far as 1937. In the early 2000’s, the Drug Enforcement Associations attempted to ban all hemp food related products because of their trace of THC content. In 2004, Congress banned “marihuana” during the Hemp Industries Association v. DEA,[2] still utilizing the original spelling of the word, dating back to the Marihuana Tax Act of 1937.[3] This meant that the DEA could ban all synthetic THC and natural THC if it is extracted or found within “marihuana.”

Let’s Get A Bit Legal, Shall We?

To specify, Congress established the Controlled Substance Act (CSA)[4], which explains, “The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resins; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” Given CSA, CBD oil manufacturers have found loopholes to shine light on whether CBD oil is legal.

To make it easier to understand for you and I, this document reads that “marihuana” constitutes dead or live cannabis plants, cannabis resin from any part of the plant, cannabis seeds, and derived areas from cannabis seeds and resin and the plant itself. Yet, according to the CSA, the next list are exceptions that are not “marijuana”, fiber from cannabis stalks, oil from cannabis seeds, mature cannabis stalks, anything derived from cannabis stalks fiber, seeds, derived from cannabis seed oil, and lastly, seeds that are incapable of germination.

Certain manufacturers explain that they only “use parts of the plant that are NOT marijuana – the mature stalks and sterilized seeds.” Even through their strong effort to utilize this loophole, the DEA combats these statements by saying, “According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana [#8 – #16], except for trace amounts (typically, only parts per million) that may be found where small quantities of resin [#4] adhere to the surface of seeds and mature stalk. Thus, based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds.”

With this combative back and forth, manufacturers attempt to utilize another loophole. “Cannabidiol is not listed on the Controlled Substance Act(CSA) Drug Schedule” is often used as a counter argument defending the use of CBD oil. This statement is also technically true and defenders of CBD oil’s legal state often utilize the statement, “Natural cannabinoids in hemp products are exempt from DEA enforcement.” Yet, this is ONLY true for THC because Congress defined synthetic THC and marihuana separately. The court wrote: “If naturally-occurring THC were covered under THC, there would be no need to have a separate category for marijuana, which obviously contains naturally-occurring THC. Yet Congress maintained marijuana as a separate category.”

In another scenario, a manufacturer found a loophole coinciding with his defense of the production of CBD oil. Since the Section of 7606 of the Farm Bill[5] defined industrial hemp as cannabis plants that carry less than 0.3% THC, hemp plants farmed in Europe are precisely cultivated with a percentage less than 0.3 THC. With this in mind, there is a minor issue with this written act, The Farm Bill’s definition of hemp is only a slight exception. It states, “Notwithstanding the Controlled Substances Act… an institution of higher education or a State department of agriculture may grow or cultivate industrial hemp if… allowed under the laws of the State.”

The key is in the word “notwithstanding”. Think of it as side-stepping the situation. In short terms, Farm Bill’s definition is saying that “although cannabis is an illegal plant, universities and state agricultural departments can grow extremely-low THC versions of it.”

This means that unless it is a hemp plant grown by a state agricultural department or a university with an extremely low percentage of THC, it is considered a “marijuana” plant or division of “marihuana.” The only exception is given to anything you extract from stalks or seeds, which the DEA say that it could “not at all possibly be CBD”. The only way it could be CBD is from resin sticking to the stalks and seeds of a plant, and all resin from anywhere on a cannabis plant is considered, “marijuana.”

Phew, this can be somewhat confusing, can’t it? With this in mind, as a company that strongly supports the benefits of CBD oil, it is important for all consumers to be aware of the legal risks involved from consuming and buying CBD oil, if the DEA clearly believes that it is illegal.