Is Hemp and CBD Legal?
Over the last two decades, cannabis has rapidly moved from a widely-used, yet completely illegal substance, to one where a patchwork of legal frameworks rule this plant. Many are rightfully confused on whether the CBD they purchased online is legal, or whether they can still somehow get in trouble from using marijuana in a state such as Colorado, where the state has decriminalized it.
California became the first state to legalize medical cannabis in 1996 with the passage of the Compassionate Use act of 1996 (Proposition 215). Since then, 33 states, plus the territories of Guam, Puerto Rico, and the Northern Mariana Islands and the District of Columbia have legalized cannabis for medical purposes. Despite these laws, cannabis remains illegal at the federal level.
The Drug Enforcement Administration classifies cannabis as a Schedule I drug, determined to have a high potential for abuse and no accepted medical use. What this means in practical terms is that the use of the federal banking system as well as any other programs tied to federal funding is prohibited. One caveat, however is the Rohrabacher-Farr amendment, which prohibits the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. In other words, no funding exists to pay the salaries of DEA agents to raid medical marijuana dispensaries or arrest individuals.
Hemp is defined as a variety of the Cannabis plant with very low THC levels. The legal limit in the United States is at 0.3% THC. Hemp traditionally was grown for its fiber and seed oil production. These plants are densely planted and tall and planted in large fields.
Recently, the beneficial effects of CBD have increased demand for this non-psychoactive compound. Hemp grown for the purposes of CBD is cultivated in a manner more similar to marijuana than fiber hemp. The flower of the plant is what is most valuable to a farmer cultivating for both THC and CBD. The plants with the best production are sticky and resinous, and thus far generally are harvested by hand. A field of hemp harvested for CBD in the United States typically is indistinguishable from one harvested for THC.
Federal Legalization of Hemp
The Agricultural Act of 2014, which is also known as the 2014 Farm Bill, had a small section called “Legitimacy of Industrial Hemp Research.” In effect, the bill separated industrial hemp from the controlled substance act’s definition of cannabis. The bill authorized any state department of agriculture to create a program where industrial hemp is grown for research purposes.
However, many problems plagued the 2014 Farm Bill. No guidance was given on how to transport seeds or plant clones. In addition, no provisions existed for the transportation between states. This is especially tricky when participants of one state’s pilot program needed to transport seeds or plants obtained from one state to another, especially when travelling through a state that did not have a hemp pilot program. Because cannabis was “illegal” prior to this, the ambiguity of how these plants suddenly appeared from nowhere was the unspoken elephant in the room.
However, in 2015, the Consolidated Appropriations Act of 2016 contained a provision that prohibited federal money from being used to prohibit the transportation, processing, sale, or use of industrial hemp, as long as it was produced in accordance to the 2014 Farm Bill.
Wisconsin had its own legal debacle with the implementation of their Industrial Hemp Pilot Program. When the program was rolled out in 2018, most license holders understood that the cultivation of hemp for CBD had the highest potential returns. However, because of the passage of a previous law meant to help certain medical patients, Wisconsin law was unclear on the legality of CBD. The law made it legal to sell CBD products only by pharmacies under the recommendation of a physician. The law, however, was made under the assumption that the CBD was obtained by marijuana-derived CBD, not by hemp-derived CBD. No legal framework existed to deal with the CBD obtained from farmers of the hemp program.
The legal status came into question with the expiration of the 2014 Farm Bill. Fortunately, the 2018 bill cleared up the legal status and expanded guidance.
Can I Grow Hemp in My Backyard Garden?
Unless you have applied for and granted a license from your states’ hemp growing program, no, you cannot grow hemp legally in your backyard garden. The restrictions put oversight on each states’ program. For a state to have a federally legal program, it must abide by the Farm Bill guidelines and must be approved by the Secretary of USDA. If a state does not have a hemp program, the USDA will have its own licensing program through the federally-run plan. In other words, if you are willing to go through government red tape, you may be able to grow hemp.
What the new bill does is explicitly state that products derived from legal hemp programs are transportable across state lines. It can be used for commercial purposes, and products can be possessed by individuals. However, states can and already are putting certain restrictions and regulations in place, such as labeling requirements.
As time goes on, we foresee more regulation to be put into place for hemp extracts, such as CBD. Currently, most states do not have a governing body regulating the safety of CBD or other hemp extracts. So it really is buyer beware. Knowing the company behind the product is key. Does the company have third party verifiable testing? Are the testing results publicly and easily accessible?
Is all CBD legal?
Not all CBD is legal, despite the passage of the 2018 Farm Bill. Though the bill removes hemp-derived products from Schedule I under the Controlled Substances Act, it does not give a green light to all CBD. Some CBD, remember, is produced from plants with greater than 0.3% THC, or “marijuana.” CBD from these plants is still illegal, even if the THC is removed.
Furthermore, the Farm Bill does not change the fact that marijuana is still illegal nationwide federally. Though 33 states have legalized it for medical purposes, and 10 have for recreational purposes, the industry still faces challenges because of it being federally illegal. CBD produced within the guidelines of the individual state medical programs is also federally illegal because of using marijuana as its source.
When sourcing your CBD, you must ensure that it is produced in accordance to the provisions of the 2018 Farm Bill if you want to remain legally compliant.
Our CBD is Domestically Sourced, Compliant and Tested
TuneUP is legally derived from hemp grown in Colorado and Wisconsin from state-run and regulated hemp programs, and contains THC within the legal limits. TuneUP Isolate goes a step further, with no detectable levels of THC remaining. Each bottle or container is carefully labeled with accuracy, and test results are publicly available on the website.
We have heard a number of users of TuneUP say that it was the first CBD to “work” for them. Remember, whether a product actually contains the amount of CBD on the label is still something that is completely unregulated. Because CBD products are still a relatively new addition to the marketplace, some unscrupulous people have been misleading people with products that cost almost nothing to make because they contain little to no CBD, and charge the price that a properly-made one should command.
We at TuneUP in fact support legislation that would require testing by accredited labs. We want our clients to have only the best quality product.