The Precarious Legal Status of CBD

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The cannabis plant is made up of compounds called cannabinoids. The plant’s two most prominent, and most widely discussed, cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD). Each compound has differing effects on the human body. THC is the primary chemical that produces the psychoactive effect, or the ‘high’, that is associated with the use of cannabis. THC also has a multitude of therapeutic benefits including the ability to increase one’s appetite (helpful in patients with reduced appetite due to chemotherapy or HIV/AIDS treatment), it reduces nausea and vomiting, and it has been shown to act as an anti-inflammatory. On the other hand, CBD has no psychoactive effect, and in fact has been shown to mitigate the impact of THC. It has been sought after for its ability to prevent convulsions, making it effective for treating many different seizures disorders. Studies have also shown that CBD may help a variety of conditions including epilepsy, PTSD and pain management, to name a few. Currently, Utah allows CBD use for children with intractable epilepsy through the Hemp Registry created by House Bill 105 in 2014.

As CBD has continued to gain recognition as an effective therapeutic tool, so has its marketing as a medication. Many companies, including those that are not located in states with medical cannabis laws, claim that medical-grade CBD products are “completely legal” to sell anywhere in the U.S., usually via the Internet.

Cannabis 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 the cannabis plant violates the federal Controlled Substances Act. The Drug Enforcement Administration (DEA) has already stated that it believes CBD to be a cannabis derivative and, therefore, a Schedule 1 drug. However, the federal Controlled Substances Act doesn’t include “mature stalks” in its definition of “marijuana.” The stalks of the cannabis plant are used to create hemp (which contains little to no THC and does not have the psychoactive effect). Hemp is not scheduled under the federal Controlled Substances Act and, therefore, is also not under the authority of the DEA.

Though the DEA has little enforcement power over hemp products, it does control hemp cultivation since cultivation requires the cannabis plant. In order to grow hemp in the U.S., you must have a permit from the DEA. It is worth noting that this type of permit is nearly impossible to obtain.  Therefore, cultivating hemp without a DEA  permit remains a federal crime. The only exception is the Agricultural Act of 2014 aka the “Farm Bill”, which allows state departments of agriculture, universities, and colleges to cultivate hemp without a permit for educational and research purposes. Because a DEA permit is required to produce hemp, the products marketed to consumers in the United States are typically produced using hemp imported from overseas. This means that CBD products derived from processed hemp (but not from cannabis plants) may be legally sold after being imported from outside the U.S.

In recent years because of the increase in visibility of CBD products the Food and Drug Administration (FDA) has been given jurisdiction to regulate the claims made by producers of CBD products. Under the Federal Food, Drug and Cosmetic Act (FDCA) when a company makes a medical claim about a product, that product is classified as a drug. 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. In 2015, the FDA began issuing warning letters to companies making claims about the medical benefits of their CBD products. This trend has continued into 2016 with the FDA sending letters to additional companies. The FDA accused these companies of making unfounded medical and therapeutic claims about their CBD products. For instance, some companies have stated that CBD is effective for treating certain kinds of cancer. The FDA gave these companies 15 days to demonstrate how they would resolve violations of the FDCA.

Anyone purchasing hemp-derived CBD should understand that the CBD is coming from hemp and not cannabis plants. While it is true that hemp contains trace amounts of CBD, these quantities pale in comparison to the high-CBD strains derived from the cannabis plant. It is important to note that in the words of the Hemp Industries Association “CBD is not a product or component of hemp seeds, and labeling to that effect is misleading and motivated by the desire to take advantage of the legal gray area of CBD under federal law.”

This complex and confusing regulatory reality of CBD products creates a legal landscape where some CBD products are legal and some are not. CBD products derived directly from the cannabis plant remain illegal under federal law and as a result cannot be transported or mailed across the country. These products are only allowed to be sold and distributed in states with medical cannabis programs.

Because of this, these CBD products are not technically legal in Utah and should not be viewed as such.

We are supporting House Resolution 4779 by Representative Jason Chaffetz which aims to protect people who travel to states with medical cannabis laws to purchase cannabis derived CBD oil from being charged with a federal crime. It is important to remember that although those who are participating in the program have been given a legal waiver to possess CBD products, crossing state lines to obtain it remains illegal and thus they are vulnerable to prosecution. House Resolution 4779 would resolve many of the issues related to CBD products. 

To support our efforts to correct this injustice sign the following petition supporting HR4779 by visiting our Petition Action Center or consider becoming a member of the Drug Policy Project of Utah today.