Seeing Through the Smokescreen: Discerning the Legal Status of CBD

Despite the growing legality of marijuana in states across the country, marijuana-derived products such as cannabidiol remain in a legal grey area. Cannabidiol (“CBD”) is a naturally occurring cannabinoid compound found in the marijuana plant. Unlike THC, the compound most typically associated with the marijuana plant, CBD generally does not cause users to experience psychoactive effects and may contain neurorestorative properties. CBD-based products are typically ingested in oil form rather than by smoking or vaporization, and usually contain .3% or less THC.

Much of the confusion surrounding CBD products relates to the 2018 Farm Bill, which legalized certain forms of hemp cultivation. However, even after passage of the Farm Bill, CBD remains federally illegal in most circumstances. Significantly, the Farm Bill provides states the prerogative to develop regulatory systems for the production of hemp products, rather than outright legalizing processing of the marijuana plant. States must also submit and receive approval of their plans by the U.S. Department of Agriculture, and prospective cultivators must obtain a hemp growing license.

While Section 12619 of the Farm Bill removed hemp-derived products from Schedule 1 status under the Controlled Substances Act, CBD as a compound generally remains a Schedule 1 drug. The Farm Bill does, however, create an exception for CBD products produced in accordance with a federally approved cultivation plan, by a licensed hemp cultivator, and in accordance with applicable state marijuana regulations. In Ohio, for example, CBD may only be sold for medical purposes by a licensed dispensary – CBD sold in any other manner remains a Schedule 1 drug*.

The U.S. Food and Drug Administration (“FDA”) has also demonstrated a willingness to approve CBD-based drugs where the drug’s benefits are supported by competent and reliable scientific evidence. Although obtaining such evidence has proven to be a high hurdle due to the federal prohibition on marijuana, in June 2018 the FDA approved its first (and so far, only) CBD-based drug, Epidiolex, for treatment of epilepsy.

Are CBD products legal? The answer is, it depends. They can be, subject to a complex web of overlapping state and federal regulations. To minimize exposure to regulatory enforcement action, businesses should consult with counsel regarding the legal requirements they must satisfy before producing and marketing CBD products to consumers.

*  Currently pending passage in the Ohio House of Representatives is S.B. 57.  If approved, the bill would allow businesses other than dispensaries to sell CBD products.