We receive inbox questions about “legal in all 50 states” CBD oil regularly. Recent legislative activity in our native state of Wisconsin has prompted an uptick in inquiries about the legality, efficacy, and sourcing of CBD oil. We’d like to break down the discussion of CBD oil into a three-part series this month focusing on:
- The legality of CBD oil nationally and the specifics of the new CBD law
- The science, uses and sourcing of CBD oil
- An introduction to the many other applications of cannabis beyond medical and/or recreational use – via industrial hemp (such as food, fiber and fuel).
CBD stands for cannabidiol, which is one (of over 100) cannabinoid phytochemicals found in cannabis. The human body has a corresponding endocannabinoid system of receptors that responds to these cannabinoids. Cannabis has other phytochemicals, as well, known as terpenes and flavonoids. Cannabinoids, terpenes and flavonoids engage uniquely and synergistically with the body and the endocannabinoid system. Each phytochemical has individual properties, but in concert, they can enhance and/or balance out their efficacy within the body. For more information on the make-up of cannabis and the endocannabinoid system, see our previous blog post on Cannabis Cultivation.
It has become a common belief that the cannabinoid THC is psychoactive/psychotropic/high-inducing and CBD is non-psychoactive/non-psychotropic/does not produce a high. While CBD does not generate the levels of euphoria (and sometimes dysphoria) that THC does, research shows that CBD has antipsychotic, antianxiety, and antidepressant capabilities. Contrary to common public discourse, CBD is a mood-altering chemical. It, just, does not alter a person in the same way, and/or to the degree, with which THC does.[i] We will dive deeper into the science and uses of CBD in the second part of this series.
The false dichotomy between CBD and THC has created a legislative culture where CBD-only laws are seen as safer, and legalization efforts for full spectrum medicine have been met with greater concern. Similarly, great efforts have been made to separate medical and/or recreational marijuana from industrial hemp. Medical and/or recreational marijuana and industrial hemp are all cannabis. In each case, the plant has been bred for different phytochemical and physical qualities. For a detailed explanation of the evolution of the cannabis plant, see our previous blog post.
The intersection of delineations between THC, CBD, marijuana, and hemp is at the crux of the discussion of whether CBD oil is actually “legal in all 50 states.” The Controlled Substance Act of 1970, the authority of the DEA, the 2014 Farm Bill, and states’ individual cannabis legalization efforts complicate whether or not companies are free to sell and ship CBD oil and whether consumers are free to purchase, cross state lines with, possess, and consume CBD oil.
The Controlled Substance Act (CSA) of 1970 was designed to organize an array of drug laws into an ordered system. It created five categories (schedules) of drugs and sorted individual drugs into the schedules based on a list of criteria describing each drug’s potential danger, propensity for abuse, and possible medical use. Schedule I drugs being the most dangerous, addictive and least medicinal. Marijuana was placed as a Schedule I drug and defined marijuana as:
(16) 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. 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 therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.[ii]
The DEA was created three years after the CSA in order to enforce the CSA. The DEA is supervised be the US Attorney General. The Attorney general, along with Health and Human Services (HHS) and the Federal Drug Administration (FDA) have an avenue to de-, or re-, schedule marijuana. The DEA/Attorney General has failed to do so, however, citing the FDA’s inability to prove marijuana’s medical legitimacy.[iii] This is ironic in that the US holds a patent (No. 6,630, 507) that insinuates the potential medical use of a chemical compound found within the cannabis plant. This patent isn’t direct proof of cannabis’s medicinal value, but it casts serious shade on the DEA’s argument. A simple search of medical journal articles referencing cannabis can also provide ample evidence of the medicinal value of cannabis.
In 2004 the United States Court of Appeals, Ninth Circuit, decided in favor of Hemp Industries Association vs. the DEA. This decision, effectively legalized the import and distribution of products derived from non-psychoactive hemp plants (industrial hemp) because the court argued non-psychoactive hemp is not included in Schedule I.[iv] Industrial hemp products could be imported and distributed, but industrial hemp was still illegal to grow in the United States without the authority of the DEA.
In order to circumvent the federal illegality of cannabis, individual states began their own legalization efforts. Cannabis is still federally illegal, but states have chosen varied degrees of legalization protecting their citizens from state-level sanctions. Under the Cole Memo of 2013, the Department of Justice set forth a series of policies (not laws) that articulated a federal hands-off approach to companies and citizens following the laws of the state-regulated cannabis industries.[v] Recently, via the latest spending bill, Congress banned the Department of Justice (DOJ) from spending any money on prosecutions in states that have enacted medical marijuana legalization measures.[vi] Attorney General Sessions and President Trump continue, however, to be unclear regarding their positions on the safety of companies and patients in state-legal markets.
States have enacted laws that legalize medical and/or recreational use of cannabis. Some of these states, and states that have no medical/recreational legalization, have also legalized the cultivation and processing of industrial hemp. Under Section 7606 of the Agricultural Act of 2014 (2014 Farm Bill), the U.S. House of Representatives passed an amendment that defined Industrial Hemp as distinct from marijuana in that it is a cannabis plant that has less than .3 percent THC. The 2014 Farm Bill created a mechanism for states to pursue a pilot program to investigate the efficacy of hemp for industrial purposes.[vii] This has allowed the cultivation of industrial hemp without the authority of the DEA (but under state-authorized mechanisms). We will discuss uses for industrial hemp in the third part or this series.
International companies began to process, export/import and distribute industrial hemp derived CBD oil as a supplement. United States companies began to process and distribute industrial hemp derived CBD oil via protections under the 2014 Farm Bill. And, the “legal in all 50 states” CBD oil industry was born. However, in December of 2016 the DEA published via the Federal Register a final rule establishing a new drug code for marihuana (an antiquated way the DEA spells marijuana) extract which includes, but is not limited to, CBD oil.[viii] The justification of the new code was to stay current with international drug control treaties administered through the United Nations. The DEA argues they did not add CBD oil to the CSA, rather they clarified existing definitions of cannabis and cannabis-derived products as it pertains to the CSA. The crux of the DEA’s argument is that CBD oil can not be processed without traces of other cannabinoids and from only the parts of the plant that fall within industrial hemp legalization (the mature stalks and seeds). The DEA claims that CBD oil can only be extracted from the resin of the plant and resin is defined as “marihuana” not hemp, therefore; illegal.
The Hemp Industries Association has, again, filed suit against the DEA regarding the recent code creation, but no rulings have been finalized. Despite a plethora of companies advertising that their industrial hemp-based CBD oil is legal to purchase, ship, and possess in all 50 states, the DEA deems industrial hemp CBD oil illegal. Until there is a ruling, the legality of CBD oil falls within the gray area of what is legal under the initial Hemp Industries Association vs. DEA ruling, the 2014 Farm Bill, and the final ruling of the DEA regarding “marihuana,” THC, and “marihuana” extracts. In the interim, the CBD oil companies are risking economic gain over the potential for a DEA crackdown. They are betting that most individuals do not understand the questionable legality of the oil, and the DEA will not come down on the individuals purchasing the oil, which will continue the demand.
As stated above, citizens living in states that have enacted cannabis legalization laws for medical use, or have a hemp pilot program under the Farm Bill, have protection against the DEA, so Wisconsin’s recent CBD legislation was seen as a relief for patients from the grayness of federal legality of CBD oil. However, the recent Wisconsin CBD legislation legalizes the possession of CBD oil only. It does not legalize the cultivation, processing, or dispensing of CBD oil.[ix] As discussed above, the DEA’s current stance is that CBD oil is illegal. Without state protections for cultivation, processing and dispensing – patients are still at risk accessing the oil. The law makes it sound like doctors and pharmacists are able to dispense the oil, but upon close reading, those doctors and pharmacists could only dispense the oil after going through the controlled substances board for an investigational drug permit from the FDA, which takes copious amounts of time and money.[x]
Why is this a problem? We won’t sugar-coat it; kids are dying, and/or their quality of life is being thwarted by pharmaceutical side effects, due to seizure disorders. CBD oil has been proven to reduce and/or stop seizure activity for some patients with seizure disorders.[xi] CBD oil has also been shown to have fewer negative side effects compared to prescribed pharmaceuticals to treat these conditions. CBD oil has also been shown to improve alertness and communication for some of these patients.[xii] Seizures are, by no means, the only disease CBD can treat. In the next blog of this series, we will discuss uses of CBD in more detail.
And, while CBD oil is a good start, it is very important to understand that most patients with seizure disorders (and other illnesses) need full spectrum cannabis oil.[xiii] That is oil that contains other cannabinoids including, but not limited to, THC. While phytochemical isolation is an important area of cannabis research, the entourage effect of multiple cannabinoids, terpenes and flavonoids has been shown and needs to be understood regarding cannabis legalization.
Lastly, much of the industrial hemp-based CBD oil being imported and distributed in the United States under the “legal in all 50 states” label is from China. Even if the companies claim their oil is made in Europe, much of it is imported from China and bottled in Europe. The issue with oil from China, and elsewhere, is the lack of regulation. Little is known, or tested, regarding solvents, heavy metals, or purity.[xiv] We will cover sourcing CBD oil in the next blog of this series.
What can you do? Cannabis legalization should be a bipartisan issue. Send this link to your elected officials and communicate to them that you want functional legislation that grants complete access to full spectrum cannabis as medicine. We urge you to let your elected officials know that cannabis is an herbal medicine and citizens should have access to grow, process, possess, and consume a plant that is safer than alcohol and opioids. And, for those that do not have the means to grow and make their own medicine, there should be a regulated industry to provide safe and tested cannabis medicine to them. Furthermore, remind your elected officials that there is ample scientific research proving cannabis is medicine and the Schedule I delineation of cannabis needs to be removed to further cannabis-as-medicine research.
Are you from Wisconsin? Canna Badger is an excellent resource for Wisconsin cannabis news. You can also donate and/or volunteer for Wisconsin Homegrown Voters PAC . Follow this link to contact your Wisconsin elected officials.