·  Legal News, Analysis, & Commentary


Why CBD Regulation Continues to Be Murky Territory

— May 13, 2020

CBD regulations are unfortunately quite complex and unclear, but taking time to educate oneself and staying on top of new laws and executive actions is an important part of being a responsible CBD buyer or seller.

The legal status of CBD has a long and complicated history, so it’s no surprise that CBD regulations today are still often unclear. Although CBD doesn’t contain THC and is therefore not psychoactive, its similar appearance and association with its THC-containing relative marijuana have made it the subject of many legal regulations and prohibitions throughout the years.

One of the main reasons that CBD regulations continue to be confusing and opaque to this day is because they apply differently to buyers and sellers of the product. While it is not federally illegal to purchase CBD today, it is technically illegal to sell the product in the US.

However, as many consumers have noticed, CBD products have still made their way into stores around the country. This is because federal laws prohibiting the sale of CBD are very seldom enforced today, and sellers’ risk of prosecution is in fact quite low as a consequence.

The rapid growth, popularization, and social acceptance of the product doesn’t change the fact that selling it is still technically prohibited by the Federal Drug Administration (FDA.) The only exception is for a federally approved CBD product. To this day, the only federally approved CBD product is the drug Epidiolex, a drug designed to reduce the frequency and severity of seizures.

Despite federal prohibition, it’s important to note that federal raids and prosecution of sellers of CBD are extremely uncommon, with federal agencies preferring to prioritize crackdowns of organizations selling more harmful drugs. Nonetheless, as a CBD retailer, you are put into murky legal territory, particularly if federal agencies were to ever place a higher priority or put more resources towards enforcing the federal laws against CBD on the books.

That said, federal regulations do seem to be moving in the direction of looser regulations of CBD. Thanks to the now-famous Agricultural Improvement Act of 2018 (also known as the farm bill) the enforcement of regulations around hemp and CBD is now no longer under the jurisdiction of the Drug Enforcement Agency (DEA.) The farm bill removed hemp from the Controlled Substances Act. 

This includes most CBD products since Cannabis with less than 0.3% of THC is legally classified as “hemp.”

This means that the DEA is out of the business of raiding growers of hemp and processors of CBD, and legitimizes it as a viable and lawful crop to grow. The farm bill also specifically tasks the FDA with regulating hemp-derived food and products. These regulations are still unclear, and specific regulations are expected to be released at some point in 2020, as legislators are crafting them currently.

Despite these recent steps towards fewer regulations, the New York Times has reported on several instances in certain states like Texas where CBD vendors did face legal trouble. These legal ramifications can sometimes even vary depending on the specific county or regional district attorney of a given retailer. 

In fact, even the FDA acting chief has stated that there are many unanswered questions and concerns surrounding CBD’s legal status as discussed in The Washington Post. The legal situation around CBD products presents a paradox. Most parties seem to agree that more clarity is needed when it comes to regulations, but there is still no consensus on how to achieve that clarity.

Things become even more confusing when one considers that state and local authorities have their own laws and regulations for the substance. In Idaho, Iowa, and South Dakota, for example, hemp is considered illegal by state law. In New Jersey, New Mexico, and North Dakota and a variety of other states, it is considered legal without restriction by state law. 

Finally, in other states such as Alaska, California, and Washington, it is conditionally legal. Many of these states have more specific regulations, legalizing it only in certain form factors or when it’s not sold in combination with food and drinks. 

According to Daily CBD Magazine, states like Hawaii have recently sought greater clarity as to the local laws and regulations around CBD. Lori Nagatoshi, program manager of the department’s Food and Drug Branch, stated on Hawaii public radio that the lack of clear local regulations around CBD is dangerous. In many states like Hawaii, the fear around unclear regulations comes from the concern that CBD products could be sold containing other harmful substances like pesticides, metal particles, or synthetic cannabinoids.

For those that wish to learn more about local regulations around CBD, it can be helpful to review a list of states and their specific regulations. Digging into the state regulations around CBD can be time-consuming, but it’s necessary for CBD buyers and sellers to stay on top of the most recent legalities surrounding the substance. If you’re considering selling CBD as part of a business, it could also make sense to retain an attorney familiar with local regulations.

White container of CBD on top of hemp leaf, both on a burlap surface; image by CBD Infos, via
White container of CBD on top of hemp leaf, both on a burlap surface; image by CBD Infos, via

The story, however, doesn’t end there. Even in states where hemp and CBD are permitted according to state law, there can still be some legal complications when it comes to county health agencies that can have their own sets of regulations. In some cases, local health departments can choose to prohibit the sale of CBD in food and beverages in specific commercial areas.

That’s why it’s important for both buyers and sellers of CBD to keep up-to-date with the latest developments in CBD regulations with a reliable legal publication. Staying current with the most recent legislative and executive developments is the best way to limit your liability, particularly if you’re in the business of selling CBD products.

As a result of all of this legal confusion, some CBD enthusiasts are turning to the internet to purchase CBD products. Purchasing CBD online as well, however, can come with its own set of obstacles. Many CBD buyers, for example, have reported difficulty getting CBD products shipped to certain ZIP codes. 

Interestingly, some of these types of location-based issues have even been reported by buyers living in areas where CBD was legal in terms of state law. With all of the murkiness around CBD regulations to date, it’s no wonder that online sellers can be wary of sending their products to some buyers and locations.

CBD regulations are unfortunately quite complex and unclear, but taking time to educate oneself and staying on top of new laws and executive actions is an important part of being a responsible CBD buyer or seller.

Join the conversation!