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ALMOST LEGAL

Is CBD legal? It depends on who you ask

By Jenni Avins

“CBD is the new avocado toast,” stated the caption on an Instagram that recently appeared in my feed—a photo of a chalkboard outside at a Williamsburg, Brooklyn café advertising a “magical CBD latte.”

CBD (or cannabidiol), if you’ve not yet encountered it, is a non-psychotropic chemical compound that occurs naturally in cannabis, and is currently touted in everything from pet-calming drops to ache-alleviating muscle rubs and, yes, “magical” lattes. You can drink it, drop it, smoke it, spray it, eat it, and rub it into your skin. Fans say it eases their pain, insomnia, and anxiety. It’s the active ingredient in an epilepsy medication nearing US Food and Drug Administration approval. And research suggests it may even help curb the brain damage caused by opioid addiction.

With these benefits, of course, comes the potential for financial windfalls. The Hemp Business Journal reports the US market for hemp-based CBD products—a category that was not on its radar five years ago—was worth $190 million in 2017, and by its estimates could increase a cool 700% by 2020.

But is it legal?

It depends on where you are, where your CBD came from, and, frankly, who you ask.

“So much of this is operating in the absence of regulation, and states take widely different approaches,” says Daniel Shortt, an attorney who focuses on cannabis law in Seattle, Washington. “You have to know your local law.”

Where is CBD legal?

If you’re 21 and live in a state where recreational cannabis is legal, then you can use CBD that comes from marijuana or hemp with impunity. Congratulations! If you live in a state where medical cannabis is legal, and you have a prescription, you are similarly golden. For everyone else in the US, the laws surrounding CBD are an incomplete and messy patchwork that leave citizens without crystal-clear answers or protections. Some states have limited-access laws to protect citizens who use high-CBD/low-THC extracts to treat conditions such as epilepsy, while others have none at all.

In addition, the rules in the US are changing as fast as the industry is growing—and even the agencies involved in regulating cannabis and cannabis-based products acknowledge contradictions among their various rules and policies.

One thing we know for certain is that marijuana is still federally outlawed as a Schedule I substance, which the US Drug Enforcement Administration states has “no currently accepted medical use and a high potential for abuse” (despite proof to the contrary).

Effective in January 2017, the DEA (which typically refers to marijuana by the plant’s scientific species name, Cannabis sativa, or the Reefer Madness-era spelling “marihuana”) made a rule stating its marijuana scheduling includes “marihuana extract.” In the rule, the agency defined “marihuana extract” as an “extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis”—which would include CBD.

What about hemp?

Right! The DEA’s 2017 rule understandably freaked out the hemp industry.

Marijuana and hemp are essentially two versions of the same species of plants from the genus Cannabis, bred to have small genetic variations. Marijuana is typically grown to have high amounts of tetrahydrocannabinol, or THC, a psychoactive chemical compound. Hemp, on the other hand, is bred specifically to have, at most, trace amounts of THC—certainly not enough to cause a psychoactive effect.

According to the 2014 Farm Bill, a set of federal laws concerning US food and agriculture, that in part establishes guidelines for growing hemp in the US, legal “industrial hemp” refers to plants and products derived from cannabis plants with less than 0.3% THC, grown by a state-licensed farmer. On the other hand, there’s nothing in the bill about CBD, and the hemp industry makes many of the CBD products now widely available.

The Hemp Industries Association responded to the DEA’s new rule by filing an appeal saying the agency had overstepped its bounds when it failed to acknowledge lawful hemp and non-psychoactive cannabinoids, such as CBD, that already seemed to be covered by the Farm Bill. Last month, a panel of judges for the 9th Circuit Court of Appeals rejected the appeal, mainly because the trade group failed to comment during the DEA’s rule-making process, but it wasn’t exactly a crushing loss—and here’s why.

The judges who shot down the Hemp Industries Association’s appeal acknowledged that the Farm Bill’s definition of legal cannabis differs from the DEA’s, with the judges writing that “the Agricultural Act”—i.e., the Farm Bill—“contemplates potential conflict between the Controlled Substances Act”—i.e., the DEA’s scheduling rules—”and preempts it. The [DEA’s 2017] Final Rule therefore does not violate the Agricultural Act.” In other words: The Farm Bill wins (even if the trade group lost this particular legal battle).

What does that mean for my CBD lattes, tinctures, and capsules?

Theoretically, if you’re consuming products made from hemp grown by a state-licensed grower, that contains less than 0.3% THC, you’re in good shape. That’s a lot of questions to ask your CBD provider, but it’s not unreasonable to expect them to provide answers. So, if you’re in Brooklyn and are thinking about sipping on a CBD latte, your best bet is to ask the café where their extracts come from.

In any case, you can take heart that CBD busts are not a high priority for law enforcement.

“We’re in this stage where we have non-enforcement at the federal level, non-enforcement at the state level,” says Cristina Buccola, a New York-based attorney who advises cannabis-related businesses. “For all intents and purposes it looks like a legal substance.”

And of course, states including California, Colorado, and Oregon are proceeding with legalizing adult use of all kinds of cannabis, despite marijuana’s Schedule I status, so we can assume there will be some discrepancies between state and federal laws when it comes to CBD as well. On Thursday (June 7) senators Elizabeth Warren and Cory Gardner, from Massachusetts and Colorado, respectively, introduced legislation that would protect states’ rights to regulate marijuana laws without interference from the federal government.

So where is this all going?

CBD enthusiasts who are happy to get their stuff from hemp may have an unlikely ally in senate majority leader Mitch McConnell. The staunch conservative introduced a bill in April that would establish hemp as an agricultural commodity and clearly remove it—along with any doubt about hemp-derived CBD—from the DEA’s definition of marijuana. The Hemp Farming Act is included in the 2018 Farm Bill, which will go to committee for approval later this month. It could be a huge victory for the hemp industry, and CBD fans, if it survives in its current form.

“I do think CBD will be legalized on the federal level within the next 12 to 18 months,” says Buccola. “There’s too much momentum behind it now. You have people with real power and bipartisan support that are in favor of this.”

In the meantime, cannabis-friendly states like Colorado, where laws are designed to protect a burgeoning hemp industry, may be the best indicators for the legal future of CBD. There, a new law states that hemp products—CBD lattes and oils among them—will be treated like food in the eyes of the law, subject to the same sorts of regulations, inspections, and recalls as other edible products.

In an unregulated area that’s ripe for scammers to take advantage of unwitting customers, this seems like a small step in the right direction—or at least, toward a more consistently magical latte.