As the push for the legalization of medical marijuana has intensified into one of the more popular topics of discussion in the United States, advocates have been putting increasing pressure on more states to legalize cannabis entirely. Currently, recreational marijuana is legal in only ten states, but as an industry, cannabis has had an incredible year of growth.
This incredible growth has got a lot to do with the increasing popularity of cannabidiol (CBD). The most popular used form of CBD is CBD oil, but there’s still a lot of confusion surrounding the legality of these products.
Despite the fact that the majority of states have legalized some of, or all forms of cannabis use, on a federal level, the DEA still classifies CBD as a schedule 1 drug. This means that it’s considered to provide no accepted medical use and has a high potential for abuse. According to the law, this is how the cannabis plant as a whole, including CBD, is classified.
However, at the end of last year, the 2018 Farm Bill was passed which has legalized industrial hemp on a federal level. The act states that industrial hemp and its derivatives (including CBD) are now legal on a federal level. This development is a real game-changer for the CBD industry. But it has added a bit more confusion to the issues surrounding the legality of CBD oil. While cannabis-derived CBD oil is still not legal in all states, hemp-derived CBD oil is now fully legalized.
The Difference Between Cannabis-Derived CBD Oil and Hemp-Derived CBD Oil
Broadly speaking, in the botanical world, there are two kinds of cannabis – hemp plants and drug plants. This differentiation is also often referred to as marijuana and hemp. Both are cannabis plants, but they have very different purposes. Hemp plants are typically grown for fiber and seed oil, while drug plants include non-intoxicating CBD-rich plants and intoxicating THC-rich plants.
Hemp is Cannabis sativa, and marijuana is either Cannabis indica or Cannabis sativa. Essentially, hemp is the well-known and legal term for cannabis that contains less than 0.3% THC, and marijuana is the well-known and legal term used for cannabis that contains more than 0.3% THC.
The main difference between drug plants and hemp plants is the resin content. Industrial hemp plants are low-resin plants, while drug plants are high-resin plants. Initially, the U.S. federal law defined marijuana in terms of its resin content. Here’s the definition of marijuana as encoded in the 1970 Controlled Substances Act (CSA):
“The term marihuana means all parts of the plant Cannabis sativa L. [sic], 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 resin. Such term does 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.”
So what does all this mean? Well, essentially, certain parts of the cannabis part, including “mature stalk” and “sterilized seed” were exempt from the legal definition of marijuana. Hemp seed oil is derived from the seeds of the cannabis plant.
Here’s what you need to understand about the difference between CBD that is hemp derived and CBD that is cannabis/marijuana-derived. Marijuana is harvested for its buds, which include psychoactive properties, like THC, which is known to produce stoned effects. Hemp, on the other hand, is harvested from the stalk and seeds of the crop. These hemp plants don’t contain enough THC to make anyone high. Ultimately, for cannabis to be considered as hemp, it should contain no more than 0.3% THC.
Is Hemp-Derived CBD Oil Legal?
Hemp CBD oil products are legal to purchase without a prescription throughout the U.S and in at least 40 other countries around the world. Essentially, provided that products are made from oil that has been extracted from hemp and not marijuana, you are able to buy it in all 50 states without a doctor’s recommendation or medical marijuana card.
It all boils down to the difference between hemp and marijuana, as explained above. While THC and marijuana are prohibited under federal law, CBD isn’t specifically listed under the Controlled Substances Act. Since the definition of marijuana according to federal law (as stated above), excludes the oil extracted from the seeds, as well as the mature stalks of the plant, hemp CBD is classified as legal. This means that CBD products that are hemp-derived/originate from these parts of the plant aren’t prohibited under federal law.
In 2018, President Trump passed the 2018 Farm Bill, which effectively removed hemp from the list of schedule 1 substances and reclassified it as an “agricultural commodity.” According to the new bill, the law states that if the CBD is derived from hemp and adheres to the below regulations, it’s removed as schedule 1 substance and is considered legal:
- The hemp has less than 0.3% THC
- The hemp adheres to the shared state-federal regulations
- The hemp is grown by a properly licensed grower
The 2018 Farm Bill also withdrew restrictions on the sale, possession, and transportation of hemp-derived CBD products. This means that hemp-derived CBD products can be transported across state lines as long as it adheres to the regulations above.
Is Marijuana-Derived CBD Oil Legal?
This is where things get complicated again. Since marijuana-derived CBD originates from a plant that is still classified as illegal, things are not that straight-forward.
In states where the use of recreational marijuana is legal, like California and Colorado, marijuana-derived CBD is obviously also legal. However, in some states, marijuana is only legal for medicinal purposes. In these states, you are only allowed to use medical marijuana/marijuana-derived CBD under certain conditions, meaning that you would need a medical marijuana card to purchase CBD oil. In other states, marijuana is strictly prohibited, and thus, so is marijuana-derived CBD oil.
There are currently 15 states where cannabis – including both hemp and marijuana – are completely legal for both medicinal and recreational use. These states are:
- New Jersey
- South Dakota
If you are lucky enough to live in one of these states, you are legally allowed to buy any kind of marijuana and CBD products, regardless of where it is derived from.
There are currently 47 states (including the above 10), where marijuana-derived CBD oil is legal for medical purposes. The specific regulations vary from state to state, but most states allow the use of medical marijuana for a broad range of conditions. However, there are those states that set specific requirements for approved use. For instance, the CBD must contain less than a certain percentage of THC, or the patient must suffer from a specific condition.
The specific requirements for a person to use marijuana-derived CBD vary from state to state. Before purchasing CBD oil in any of these states, you are encouraged to research the regulations. In one state, chronic pain may qualify you to obtain a medical marijuana card, and in another state, it may not. This is why it’s important to look into the specific laws for each state.
Final Thoughts: Do You Need an MMJ Card to Buy CBD?
Ultimately, what you should understand from this article is that the legality of CBD oil and whether you will need a medical marijuana card to purchase these products, all comes down to where the CBD is derived from. If the CBD oil is derived from hemp, you are legally able to buy it throughout the United States without a medical marijuana card.
However, if the CBD oil is marijuana-derived things are a little more complex. Unless you live in one of the states where recreational marijuana is legal, you will need a medical marijuana card to purchase marijuana-derived CBD oil. At the end of the day, it’s all about where the CBD oil originates from.