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CBD – So it is or isn’t Legal?

By Abe Cohn, THC Legal Group

The Legal Language Problem

Legal Cannabis has notoriously been subject to a series of complaints and criticisms by the general population, some ridiculous while others are unfortunately, perfectly warranted.   One of the more common complaints our cannabis attorneys hear involves the seemingly purposeful attempt by judges and lawmakers to issue laws and rulings that are nearly impossible to understand.  Indeed, ambiguous and complicated language coupled with caveats and exemptions can frustrate even the most seasoned lawyer.

What Is CBD?

The Federal laws surrounding Cannabidiol (CBD) are a paradigmatic example of this legal mayhem and are worth delving into.  CBD is the lesser-known, brother chemical to the THC chemical in the marijuana plant and is responsible for a great deal of the healing properties ascribed to the Cannabis plant.  Indeed, in its purest form, it causes none of the psychoactive experiences traditionally associated with cannabis while conferring all of the plant’s medicinal benefits.  Its legality should be a no brainer right? Well, not quite.

CBD and the CSA

CSA

The Federal Government, in its infinite wisdom, has classified marijuana as a Schedule 1 drug under the Controlled Substance Act (CSA).  This designation reflects the Government’s belief that Cannabis is a massively dangerous drug with zero medicinal benefit. Putting aside the almost vulgar absurdity of this claim, it nevertheless remains Federal law and CBD advocates should consider carefully how CBD oils and derivatives should fit under this schema.

A straightforward analysis of the problem proceeds as follows:

  1. Marijuana is federally illegal under the Controlled Substance Act (CSA).
  2.  Cannabidiol (CBD) is derived from Marijuana
  3.  CBD is therefore illegal under the CSA

This syllogism is only partially reliable. The complexity arises when one considers the ambiguity surrounding the meaning of the word Marijuana and the means by which CBD is derived. The Marijuana plant undergoes a series of changes as it matures from seed to fully viable bud and depending on when and from which part of the plant the CBD is extracted, its possession and use may or may not be federally legal.

The CBD Roadmap To Federal Legality

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The language in the CSA begins by specifying that:

The term ”marihuana” means ALL PARTS of the plant Cannabis sativa L., 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. The text than qualifies this seemingly all encompassing language with the caveat that:

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 there-from), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

Thus, under the CSA, CBD derived from the mature stalks, or derived Hemp, is not implicated and would not trigger a Schedule 1 violation.

Continuing down this maze of subtext and fine print, we encounter another split in the road.  While it is true that finished Hemp products are not covered by the CSA, the cultivation of Hemp does fall under the purview of the DEA’s authority and is illegal in the United States without explicit permission.  

Thus, for CBD to be legal (at least Federally) in the U.S, it must both be derived from the stalk of the plant (The Hemp) and imported from a country outside of the U.S. Naturally, both of these conditions seriously hinder both the quality of the CBD produced (CBD derived from Hemp is not as potent as CBD derived from Marijuana) and the individual’s ability to access it.  Cannabis patients and advocates alike should continue to push for a reformation of laws directed specifically at CBD along with the greater call for full Cannabis legalization.

 

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