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CBD Legality: Conflicting State and Federal Marijuana Laws Create Regulatory Confusion

— March 8, 2018

There has never been much logic to marijuana laws. In 1970, cannabis, the least dangerous of drugs, was placed on Schedule I of the Controlled Substances Act along with heroin and LSD.  Schedule I is for the irredeemable drugs, the ones that have no good use, not even for terminal cancer patients. Marijuana had been outlawed de facto in the US. since 1937. (The pseudo-documentaries Marihuana: Weed with Roots in Hell and Reefer Madness were released in 1936—coincidence?)

Whether or not weed was demonized as part of the general puritan fervor that also produced Prohibition, fear of the other (the designation “marihuana” instead of “cannabis” may have been to associate it with Mexican immigrants), or as payback by President Richard Nixon for the youth anti-war movement (as one top aid alleged years later), its continued illegality at the federal level and claims of no medical benefits seem nonsensical.

Regardless of whether marijuana has medical benefits, a majority of states have passed laws or voter referendums legalizing it. Statistical evidence and limited (by its federal illegality) scientific studies suggest it can help mitigate the opioid epidemic by providing an alternative to dangerous opioid drugs for the treatment of chronic pain, anxiety, depression, migraines, epileptic seizures, even addiction recovery. Opioid overdose deaths seem to decrease in states where there is legal medical marijuana.

That marijuana gets you “high”—causes euphoria, and sometimes hallucinations—is one of the things holding legalization back. (Lawmakers don’t like the prospect of drugged driving.) That’s mainly a side effect of THC or tetrahydrocannabinol, one of the components (“cannabinoids”) of marijuana. It’s the largest component, but it’s not the only one, or even the one that has most of the health benefits.

CBD or cannabidiol—often sold as an oil—is the second largest component in marijuana and hemp. If you consider getting stoned to be a bad thing, then CBD has just the good health-related stuff. Whether from marijuana or hemp, you could consume a rope factory’s worth and not get high. It even seems to counter some of the euphoria caused by THC.

CBD E-Liquid, Tinctures; image courtesy of, via Flickr, CC BY-ND 2.0, no changes made.
CBD E-Liquid, Tinctures; image courtesy of, via Flickr, CC BY-ND 2.0, no changes made.

So, it has health benefits and no high. It must be legal, right? At the very least, it must be legal (if not encouraged) in states that allow medical marijuana?

Not necessarily. While about 16 states that don’t allow sales of cannabis as a whole do allow CBD sales, at least for medicinal purposes, it is illegal in other states, even where recreational marijuana is otherwise allowed.

In February 2017, the state of Alaska raided cannabis shops and confiscated their supplies of hemp-derived CBD products although recreational marijuana has been legal in Alaska since February 2015. Officials from the state Alcohol and Marijuana Control Office claimed that the products weren’t properly regulated and that all CBD, whether from marijuana or hemp, was illegal under federal law.

In Indiana, Gov. Eric Holcomb signed a law in April 2017 allowing CBD exclusively for the treatment of epilepsy, but Attorney General Curtis Hill later wrote that CBD was still illegal for all purposes. New legislation is under consideration to overcome Hill’s objections.

Last month, Tennessee law enforcement officers raided stores selling CBD oil-infused candy (hence the code name Operation Candy Crush) in the belief or the pretense that the items were being marketed and sold to children.

According to a caption in the Daily News Journal, Rutherford County Sheriff Mike Fitzhugh claimed the store employees were unwrapping the candy, spraying CBD on them, and then repackaging them. This was not true. On Feb. 28, all charges were dropped and records expunged.

Maybe Tennessee wasn’t aware of it, but cannabidiol products are frequently sold in the form of candy or baked goods for people who don’t smoke. I don’t think there were any confirmed cases of selling them to children (and that would be illegal anyway), only that they could have. As for children finding them in the home and eating them under the misapprehension that they were actual candy, that is also a risk with cigarettes, pills (they look like Good and Plenty or Ike and Mike’s), Ex-Lax (chocolate!), drain cleaner (Pop Rocks!), and many other legal products.

To be fair, the Drug Enforcement Agency does consider CBD and marijuana one and the same for purposes of federal law. (Charles Dickens’ Mr. Bumble in Oliver Twist: “If the law supposes that … the law is a ass — a idiot.”)

It’s not that marijuana is completely free of addictive or dependent potential or to say that marijuana rehab is never necessary, but marijuana is far less risky than many legal drugs implicated in the opioid epidemic. No one has ever overdosed on marijuana. Besides, CBD isn’t marijuana any more than hydrogen is water.

Marijuana doesn’t belong on Schedule I of the Controlled Substances Act, and CBD is only guilty by association. As many as 30 states (the exact number is oddly hard to determine) currently allow medical marijuana, and eight permit recreational, too. Many in Congress—especially those receiving tax dollars from its sale—don’t want to go back, and neither do their constituents. A threatened crackdown by U.S. Attorney General Jeff Sessions would probably only accelerate the process.

For better or worse, the cannabis tipping point has been reached. Our nation’s lawmakers and politicians can guide the process, but they can’t stop it.


DEA Drug Fact Sheet: Hallucinogens
A Brief History of Marijuana Law in America
Legalize It All: How to win the war on drugs
Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010
What is CBD, and why was it seized from Alaska marijuana shops?
Alaska is 3rd state to legalize recreational marijuana
CBD oil could be legalized by the end of March in Indiana
23 stores padlocked in Rutherford Co. for selling CBD-laced products distributors say are legal
‘Operation Candy Crush:’ Legality of Rutherford County CBD raids is under question
Charges dismissed against stores involved in Operation Candy Crush
Did a Colorado Infant Become the ‘First Pot Overdose Death’?

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