Is CBD Legal?

It is important to understand the laws surrounding CBD.

In December 2018, the 2018 Farm Bill was signed into law. This bill allows states to submit plans to grow and process hemp (defined as containing less than 0.3% THC) and hemp-derived products.

The bill also allows for interstate commerce of hemp and hemp-derived products, contains directives for research on hemp and hemp cultivation, and effectively removes hemp from the Controlled Substances Act. This means hemp derivatives (including CBD) are now excluded from the Drug Enforcement Administration’s Schedule I controlled substance designation.

While CBD is no longer classified as a Schedule I substance by the federal government, it’s important to research your state’s specific laws surrounding hemp and CBD.

CBD is extracted from hemp plants that contain less than 0.3 percent TCH (the psychoactive property that causes a high) which means it is non-intoxicating. While CBD products may relax you, they will not alter your state of mind. CBD has no known toxicity and so an overdose would be highly unlikely. Since drug tests are looking for certain cannabinoids and levels of THC, it is also highly unlikely that using CBD products would cause someone to fail a drug screening. To ensure the safe and effective use of CBD products, it is important to only purchase products from a trusted source and to start with a low dosage to see how your body responds.

A state by state analysis by our legal and compliance teams

Due to the recent and pending legislative changes in various states, many of the below risk categorizations will probably continue to change in the coming weeks and months. Additionally, we will likely continue to see some tension between state law and state agencies deferring to FDA’s position on CBD being added to foods until FDA provides some kind of clarification (e.g., issues a regulation, provides a clarifying statement, etc.). For example, although Massachusetts has passed legislation establishing a hemp program, just a few weeks ago, the MA Department of Public Health issued an FAQ outlining the prohibition of the sale of any food in the state with CBD from hemp (essentially deferring to FDA for guidance).

A. Robust and Affirmative (i.e., states with well-established hemp programs affirmatively regulating the cultivation of hemp and the commercialization of hemp-derived products; very little, if any, risk of enforcement if operating in compliance with state-specific regulations)

  1. Colorado
  2. Kentucky
  3. Oregon

B. Promising Trending Toward Robust and Affirmative (i.e., states with relatively established hemp programs affirmatively regulating the cultivation of hemp and the commercialization of hemp-derived products; recency of programs or prior instances of adversity render these states not quite as “robust and affirmative” as states such as Colorado and Kentucky; very little, if any, risk of enforcement if operating in compliance with state-specific regulations)

  1. Indiana
  2. South Carolina (NOTE: City of Myrtle Beach banned CBD products)
  3. Tennessee
  4. Vermont

C. Neutral Trending Toward Promising (i.e., states not characterized as either low-risk or high-risk, but with varying degrees of risk depending on state laws, recency of programs enacted, staleness of enforcement actions, or states with very low rate of enforcement actions even without laws affirmatively regulating hemp products, etc.; medium risk of enforcement actions)

  1. Alaska
  2. Arizona
  3. Arkansas
  4. Delaware
  5. Florida – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  6. Illinois
  7. Kansas – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  8. Maine – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  9. Maryland
  10. Minnesota – Minnesota recently enacted a law which permits hemp-derived products to be sold at retail for human or animal consumption, if they meet testing and labeling requirements.
  11. Missouri
  12. Montana
  13. Nevada
  14. New Hampshire
  15. New Jersey – considering new legislation
  16. New Mexico – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  17. New York
  18. Oklahoma – recently passed legislation in May 2019. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  19. Pennsylvania
  20. Rhode Island
  21. Texas – recently passed legislation in May 2019. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  22. Utah
  23. Washington – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent
  24. West Virginia
  25. Wisconsin
  26. Wyoming – recently passed legislation. May soon change status to Promising Trending Toward Robust and Affirmative, but legislation is very recent

D. Neutral Trending Toward Adversarial / Adversarial Trending Toward Neutral / Adverse Public Statements w/ Lack of Enforcement / Recent Policy Shifts (i.e., states w/ recent enforcement activities; states w/ adverse public statements; states w/ laws/policies inconsistent w/ enforcement or recent public statements w/o corresponding laws, enforcement priorities, etc.)

  1. Alabama
  2. California – The passage of AB 228 would make clear that hemp and hemp-products are legal for retail sale in CA – bill passed State Assembly, headed to Senate
  3. Connecticut – Recent anti-hemp policy has heightened risk of enforcement, but bill (SB 893) recently passed by legislature and signed by governor in May 2019 allowing the cultivation, processing, etc., of hemp in the state. New law appears to still classify CBD as a controlled substance.
  4. Georgia – Governor signed House Bill 213 in May 2019; contains some unclear language, but legislature pledged to clarify the full legality of the retail sale of products like hemp-derived CBD through the rules and regulations process
  5. Hawaii – Hawaii Department of Health issued statement contending that Hawaii law prohibits adding CBD to food, beverages or cosmetics for manufacture, distribution or sale. Legislation passed, but still awaiting governor signature.
  6. Iowa – Governor issued a contradictory statement to recent passage of Senate File 599 (authorizing a hemp program) arguing that the bill does NOT legalize the retail sale of CBD, that federal law controls, and that the FDA has declared that CBD is not a dietary supplement.
  7. Louisiana – Recently passed law providing protection for the retail sale of CBD; however, it imposes significant regulations (labeling, registration), while banning the addition of CBD to foods until the FDA formally so approves. Further prohibits products containing CBD from being marketed as dietary supplements.
  8. Massachusetts – The MA Department of Public Health issued an FAQ in June 2019 outlining the prohibition of the sale of any food in MA with CBD from hemp
  9. Michigan – Michigan Department of Agriculture sent out a notice warning in March 2019 against the sale of CBD, relying on FDA guidance. Michigan’s Attorney General has opined that CBD cannot be added to foods and beverages until the FDA establishes formal regulation; however, CBD tinctures and oils can be sold as long as both the retailer and the product manufacturer are registered with the Department of Agriculture.
  10. Mississippi
  11. Nebraska – recently passed legislation in May 2019 expanding the state’s hemp growing program, and decriminalizing hemp and hemp products such as CBD. May soon change status, but legislation is very recent. There are no explicit protections for the retail sale of CBD and there is concern that law enforcement actions against such products couldcontinue.
  12. North Carolina – new legislation still pending
  13. North Dakota
  14. Virginia – The Department of Agriculture and Consumer Services issued guidance in May 2019 that Virginia’s food safety regulations prohibit the introduction in interstate commerce of any food or dietary supplement containing CBD, including hemp-derived CBD.

E. Adversarial (i.e., states adversarial to hemp-derived products; relatively high risk of enforcement actions; states affirmatively determining hemp and hemp-products in violation of state law; states without hemp legislation)

  1. Idaho
  2. Ohio – SB 57 still pending legislation; not yet passed. Approved by committee; awaiting house vote.
  3. South Dakota