With all the hype about the murky line between legal and illegal when it comes to any products related to cannabis, it is no surprise that many people are unable to cite what laws free them to consume cannabis-based products. Smoking marijuana is obviously illegal at the federal level, yet many states allow recreational consumption of THC, and the number is increasing. Critics can point to the fact that federal law trumps state law (it does), so just because something is legal at one level but not another, does not make it necessarily “legal” overall. While this holds true for THC and so-called recreational marijuana, the same cannot be said for cannabidiol. CBD does have laws and regulations at the federal level that Do make it legal, and also at the state level. The following laws and regulations are why established CBD brands can legally say that they are legal in certain (or all) states.
It’s important to know that, just because one or several laws or regulations say one thing, but another law says something different, it is not always a “get out of jail free” card. A driver pulled over for smoking marijuana in a state without any recreational marijuana laws is unlikely to prevail in convincing an officer that, because it is legal in some other state than the one they are currently driving in, they should be left alone. In the case of CBD, it is helpful to know the specific laws and regulations that legalize possession of it by consumers.
Section 7607 of the 2014 Farm Bill
The Farm Bill is the primary federal law cited to support the legality of CBD products. Contrary to popular rumor, the Farm Bill doesn’t actually make legal any and all cannabidiol products, but rather only those that meet a certain standard. The CBD that the Farm Bill specifically allows is CBD derived from industrial hemp, with a total THC content below 0.3%. Industrial hemp is a bit of a legal misnomer, because it references the plant Cannabis Sativa L, the same genetic plant that can be labelled illegal marijuana. The low-THC high-CBD plants are categorized as “industrial hemp” (and thus “legal” under this law) while the higher-THC plants would not get the same protection, despite being genetically identical plants.
While the Farm Bill, as a federal law does trump state laws, an individual state law could still make something illegal if the federal law is quiet on it. Likewise, other federal laws like the Controlled Substance Act, can make certain parts or form of the Cannabis Sativa L plant illegal to possess, which is what the CSA does with respect to cannabis plants exceeding the limit for qualification as industrial hemp. If a state law makes it illegal for a consumer to possess a CBD product within the state borders, they could criminalize the local possession of that product even if the production of that product met the federal industrial hemp requirements. The Farm Bill does not address possession of a CBD product by a consumer, but rather what conditions that industrial hemp can be grown and cultivated, and even that is supposed to be under a pilot agricultural project. So, while Section 7607 is a powerful law supporting the rights to use or possess CBD, there are still state laws and court decisions that can affect the legality.
The Cole Memorandum
The Cole memorandum was a policy, but not an official law or statute, adopted by the Obama administration. What it said was, that while marijuana was still considered illegal at the federal level, there would be no money or resources spent at the federal level against recreational marijuana in states that had make it legal. What this effectively did was remove the enforcement side from the question of legality. Whether cannabis products were illegal federally was immaterial if no federal funds could be spent on any type of enforcement where the cannabis supplier or owner was in a state that had legalized, and was complying with those state laws.
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