Cannabidiol (CBD) is, quite literally, everywhere. It’s in our coffee drinks, our supplement cabinets and even our hand lotions. But if you think back to just a few years ago, it wasn’t always this way! In fact, before 2018 or so, many of us hadn’t even heard of this compound, which is just one of dozens found in the cannabis plant. Then, all of a sudden, CBD’s popularity and availability exploded. You have to ask yourself: What changed? How did CBD go from a little-known compound to a $5 billion dollar industry? And maybe most important: Is CBD legal? The answer to that is complicated, and part of the reason why it’s suddenly everywhere actually lies in CBD’s legal status, which changed significantly in—you guessed it!—2018. Keep reading for a better understanding of the laws surrounding CBD, and to find it if it’s really legal.
Is CBD Really Legal?
If you’re like most people, you’d expect the answer to the question “Is CBD legal?” to be pretty cut-and-dried. But it’s not a simple yes or no answer. As it currently stands, the entire CBD industry is operating in a bit of a legal grey area. But before we dive into that, let’s go back to early 2018, when things were a lot less complicated. According to Robert Mikos, the LaRoche Family Chair in Law at Vanderbilt University and one of the nation’s leading authorities on marijuana law, “Prior to 2018, there was a very simple answer to the question— CBD was always illegal.” Before 2018, the main law governing CBD was a federal drug law called the Controlled Substances Act (CSA). This act essentially lists out all banned and controlled substances, dividing them into categories and outlining how they should be regulated. In the CSA, it says that all cannabis and the compounds derived from it are marijuana, and marijuana is prohibited under federal law. In other words, CBD was the same as marijuana. This is likely why before 2018, none of us had really heard about CBD. Because despite the fact that it doesn’t get you high like its sister compound tetrahydrocannabinol (THC), there was no legal difference between them, and CBD was federally illegal.
How Things Changed for CBD In 2018
Now let’s get back to 2018. According to Mikos, “Two things changed that made the legal status of CBD under federal law much more complicated.” First, Congress finally made a distinction between different types of cannabis and officially defined the difference between marijuana and “hemp." Hemp officially became cannabis, with very low levels of THC. This meant that technically, growers and manufacturers could extract CBD from a low-THC cannabis plant and it would never be considered marijuana, or be subject to the CSA. “That’s why you saw this sudden boom in the availability of CBD,” says Mikos. “All of a sudden, you could grow cannabis and extract it and as long as it didn’t have THC, it was also legal to possess it,” he continues. But the legal changes didn’t end there. In the very same year, the Food and Drug Administration (FDA) approved a prescription drug called Epidiolex, made by GW Pharmaceuticals. Epidiolex is pure CBD extracted from the cannabis plant and was approved to treat seizures. This complicated things for CBD. Despite its newfound freedom from the CSA, “Approving CBD as an active ingredient in a pharmaceutical suddenly subjected it to a new set of rules called the Food and Drug Act,” explains Mikos. But how, and why? The Food and Drug Act states clearly that you can’t put an active pharmaceutical ingredient into foods that people eat, and sell them across state lines. Therefore, “If you have CBD—even CBD that is extracted from hemp—and you put it in food and drink and ship it, you are technically violating the law,” says Mikos. Unfortunately, this isn’t something the Drug Enforcement Administration (DEA) or the FDA can change or fix. “Their hands are really tied — it’s up to Congress to solve this issue," Mikos continues.
CBD Legal Complications and Loopholes
After reading the section above, you might be wondering how CBD is still finding its way into gummies, brownies, and seltzer waters everywhere you look. “It’s safe to say that there are a lot of big national chains that are still selling CBD products,” says Mikos. CBD companies seem to be comfortable existing in this legal grey area, but they are careful not to market their products as “foods.” The packaging, instructions, and marketing of CBD products are often extremely vague and can leave you asking yourself what the heck you’re supposed to do with the product you just bought. “Brands are very coy about how to use CBD because even saying it’s something you can put into your body or eat becomes problematic, and they don’t want to catch the attention of the FDA,” says Mikos. “It’s sort of like saying, ‘We don’t know what you’re doing with it. Maybe you’re using it as bicycle grease,’” he says. As you can see, the answer to “Is CBD legal?” isn’t the easiest one to answer. But overall, the biggest misconception is that in 2018, CBD became fully legal. “Everyone was so excited that it was taken out of the Controlled Substances Act, they ignored the fact that there are other statutes now governing it,” Mikos says. Next up: CBD Might Help With Weight Loss—Here’s Exactly How to Use It to Help Shed those Unwanted Pounds
Sources
The Controlled Substances Act Robert Mikos, the LaRoche Family Chair in Law at Vanderbilt University and one of the nation’s leading authorities on marijuana lawStatista: CBD retail in the United States by Jan Conway, Feb 22, 2022
