Understanding the legality of cannabis in the United States can be confusing, especially when hemp, CBD, and THC carry different weights under federal and state laws. While the 2018 Farm Bill legalizes specific cannabinoids on a federal level, each state remains free to enact its own statutes as they see fit. This makes the world of hemp even more complex!
Potential legal ramifications make many consumers wary of seeking the vast benefits of hemp-derived products. That being said, it’s important to educate yourself before using a product that may or may not be legal according to both federal laws and your own local statutes.
Hemp and the 2018 Farm Bill
To start, let’s break down the Agriculture Improvement Act of 2018, commonly known as the Farm Bill. Signed into federal law on December 20, 2018, the Farm Bill covers a range of issues beyond hemp with sections on conservation, rural development, livestock, and much, much more.
Information on hemp can be found under Title X, which broadly discusses horticulture. According to Section 10113 of this title, hemp production is now considered legal under federal law. Hemp and hemp seeds are no longer scheduled as controlled substances by the Drug Enforcement Administration (DEA), and the U.S. Department of Agriculture (USDA) has been tasked with establishing uniform regulations regarding hemp across the United States.
These regulations are formally defined under the U.S. Domestic Hemp Production Program. Under these legislations, hemp is defined as the cannabis plant; however, what differentiates hemp from marijuana is its THC content. To learn more about the difference, check out this article.
THC, or tetrahydrocannabinol, the psychoactive compound that produces a high, must remain under 0.3% for the plant to legally be considered hemp. Because hemp cannot produce a high, it is not considered marijuana, which does remain a federally controlled substance according to the DEA.
While hemp is now technically legal, restrictions still apply. Legal hemp can now be produced for means and uses beyond research purposes. More specifically, the sale, transport, and possession of legally-produced hemp and hemp-derived products are no longer restricted under federal law. This means that transfer across state lines is also legal. However, hemp is only legally considered hemp under specific circumstances.
Possibly the most important restriction for the everyday consumer to note is that mentioned above: the THC content cannot exceed 0.3%. In addition, states must gain the final approval of the Secretary of the USDA when developing plans to license and regulate hemp. Should a state choose to not implement a regulatory hemp program, individual hemp cultivators in that state must apply for federal licensure and comply with the federal program. Lastly, there are felony consequences for those who violate federal hemp statutes. As a crop, hemp may not be grown as freely as other crops such as tomatoes or peppers. Cultivators must obtain proper licensure to grow hemp legally, and all hemp produced must contain less than 0.3% THC without exception.
What about CBD?
Because hemp is legalized under the 2018 Farm Bill, is CBD also legal? Yes and no. A non-psychoactive compound found in the cannabis plant, CBD, or cannabidiol, carries a range of therapeutic applications. Although it is not intoxicating like THC, it is technically classed as a Schedule I substance by the DEA. However, since the passing of the Farm Bill, there are exceptions that make it legal under certain, very specific circumstances.
The Farm Bill protects any and all cannabinoids derived from a legal hemp plant. Therefore, CBD is only legal under the condition that it is also derived from hemp. It cannot come from a cannabis or marijuana plant that contains more than 0.3% THC, and the hemp plant it does come from must meet all federal and state regulations and be grown by a licensed hemp cultivator. This means that CBD produced from state-legal marijuana plants is technically illegal under federal law.
What About THC? Is Marijuana Legal?
While the Farm Bill is a big win for hemp and arguably also for CBD, it does not make THC or marijuana legal. Many states have legalized or decriminalized marijuana for either medical or recreational uses; however, all non-hemp cannabis remains federally illegal and is considered a Schedule I controlled substance by the DEA. This can create some uncertainty for state-legal consumers and cultivators alike. It also raises questions about delta-8 THC, which some argue may technically be considered federally legal under the Farm Bill.
Delta-8 THC is an analog of delta-9 THC. Delta-9 THC is essentially a more specific term for the THC compound. As an analog, delta-8 is very similar to delta-9 in terms of molecular structure. The main difference is the arrangement of atoms, which causes delta-8 to be less intoxicating than delta-9 THC.
Because state-legalized medical and recreational cannabis programs are carefully crafted so that they are not preempted by federal law, some cannabis products may be legal in your state. State legislations change often, so it’s important to stay up-to-date with your state’s laws regarding recreational cannabis, medical cannabis, delta-8 THC, CBD, and hemp. It’s also important to note that some states have additionally enacted decriminalization laws, meaning that the possession of certain types of cannabis and cannabis products may not be legal for sale or purchase, but there are no criminal charges for possession. States with decriminalization laws may only issue citations, and some may even carry no fines for first-time offenders.
Before consuming any cannabis or hemp-derived products, check your state guidelines. If you have trouble understanding your local laws, it may be wise to consult legal counsel before using a product that may be illegal in your state.