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The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

Marijuana is currently legal in more than half of the United States.

Eight states have legalized recreational marijuana, with an additional seventeen states permitting products that are high in cannabidiol (CBD) and low in tetrahydrocannabinol (THC). Unfortunately, state and federal laws regarding the use, cultivation, manufacture and distribution of marijuana or CBD – conflict; leaving consumers, patients, caregivers and medical researchers in the dark as to it’s legality, legitimacy and efficacy. From a layman’s perspective (I am not an attorney), let’s see if we can shed a little light on the confusing state of marijuana in the U.S., with a focus on the legality and efficacy of CBD.

Products containing CBD can be found in most medical and recreational dispensaries, as well as in boutique internet stores. The fact that the Food and Drug Administration (FDA) has not approved any of these products, has done little to slow consumer interest or demand.

Clinical studies have demonstrated in vitro (studies performed on microorganisms, cells – usually in test tubes or petri dishes) and in vivo (studies involving living organisms such as animals and humans), CBD’s amazing therapeutic properties. CBD has been found to be a powerful anti-inflammatory agent, possess life-saving neuroprotective qualities, and provide extraordinary anti-oxidant protection.

John Oliver does a masterful job of explaining the serious problems, confusion and pain that has been created by our conflicting marijuana drug laws…

The Controlled Substances Act
The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal
Nixon Signs CSA, 1970

Beginning in the 1930s and rapidly growing thru the early 1960s, a new class of prescription drugs called opioids, were being discovered in rapid fire succession. These drugs were discovered to be highly addictive and dangerous, and the world needed a strategy on how to regulate their use and availability. Global pressures resulted in international treaties aimed at stemming the flow of these dangerous narcotics.

The Controlled Substances Act (CSA) was intended to classify substances that were psychoactive and possessed a high probability for abuse. These five “schedules” were articulated in the CSA as categories to help define and regulate substances such as heroin and LSD. Below is a list of the five CSA schedules, with Schedule I drugs being listed as the most dangerous drugs with ‘no acceptable medical use.’

  • Schedule I
    • High potential for abuse
    • No accepted medical use
    • Unacceptably dangerous, even under the supervision of a physician
    • Examples: Heroin, LSD, MDMA, Psilocybin, Cannabis
  • Schedule II
    • High potential for abuse
    • Acceptable medical uses with severe restrictions
    • Severe physical and psychological dependance possible
    • Examples: Cocaine, Oxycodone, Morphine, PCP, Opium
  • Schedule III
    • Lower potential for abuse than Schedule I or II
    • Acceptable medical uses within the U.S.
    • Moderate physical and psychological dependance possible
    • Examples: Marinol (synthetic cannabis), Anabolic steroids, Pentobarbital
  • Schedule IV
    • Lower abuse potential than I, II or II Schedule drugs
    • Acceptable medical uses within the U.S.
    • Limited physical and psychological dependance possible
    • Examples: Benzodiazepines like Xanax, Phenobarbital, Ambien
  • Schedule V
    • Lowest abuse potential
    • Acceptable medical uses within the U.S.
    • Limited physical and psychological dependance possible
    • Example: Cough suppressants with codeine

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

One might find it odd that cannabis has been placed as a Schedule I drug. It clearly has medical uses – more than half the country has figured that out. The highly respected and peer-reviewed medical journal NEJM, recently published a study detailing the medical efficacy and effectiveness of CBD in treating severe forms of epilepsy.

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

Although these studies were not available to congress or President Nixon at the time when the CSA was created, there was a group coalesced to recommend appropriate action. This group was dubbed the Shafer Commission – commissioned by President Richard M. Nixon. This highly respected group delivered an in-depth analysis to the Nixon administration in March, 1972. There was just one problem with this analysis. The report essentially called for the decriminalization of marijuana (report republished here).

In fact, the Shafer Commission shed new light on the potential medical effectiveness of marijuana, its social impact and its overall risk to society.

Key excerpts from the Shafer Commission’s report:

  • “No significant physical, biochemical, or mental abnormalities could be attributed solely to their marihuana smoking…
  • “No valid stereotype of a marihuana user or non-user can be drawn…”
  • “Young people who choose to experiment with marihuana are fundamentally the same people, socially and psychologically, as those who use alcohol and tobacco…”
  • “No verification is found of a causal relationship between marihuana use and subsequent heroin use…”
  • “Most users, young and old, demonstrate an average or above-average degree of social functioning, academic achievement, and job performance…”

–  Shafer Commission Report (1972)

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

President Nixon was not pleased. After all, it was he who declared drug abuse as “public enemy number one”, and it was he who attempted to subvert the commissions findings before making them public, and it was he who ultimately ignored the results of the commissions report and supported harsh penalties for minor drug offenses.

Results of the CSA – A U.S. Opioid Epidemic

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

  • The leading cause of accidental death in the US: Drug Overdose
  • More than 18,000 deaths were attributed to prescription pain relievers
  • The US spends more than $50 billion each year on drug-related arrests (Drug Policy Alliance estimate)
  • The US has the highest incarceration rate of ANY NATION in the world
  • Almost 1 in 100 U.S. adults are behind bars
  • Half of all those incarcerated in the U.S. – are there on drug related crimes
  • A burden falling disproportionately on our country’s black youth
The Legal Status of CBD

Although CBD is not specifically mentioned in the Code of Federal Regulation (CFR); CBD is considered a “derivative” or “component” of marijuana (21 USC 802) and therefore considered a Schedule I substance just like THC. In fact, all 100+ cannabinoids found in marijuana (and hemp) are considered to be Schedule I substances by the DEA.

The State of Marijuana: Is Cannabidiol (CBD) Legal under U.S. Law?, CBD Medical Journal

Hemp, which is typically grown for its fiber and seeds, is not specifically defined anywhere within the CSA. Instead, certain parts of the cannabis plant – its fiber, seeds and stalk, are exempt from the CSA definition of marijuana.

This has caused significant confusion for the public, as CBD resin/oil can be extracted from these exempt parts of a hemp plant. Unfortunately, CBD extracted from the exempt parts of the hemp plant is still considered to be a Schedule I substance.

According to a statement released by the DEA Office of Public Affairs in 2015, CBD from any source is considered a Schedule I substance.2-3

CBD from Hemp vs Marijuana

How does CBD sourced from hemp compare to that which is sourced from marijuana?

Hemp is generally considered a poor source of cannabinoids, including CBD and THC. Hemp varieties in the U.S., Canada and Europe contain less than 0.3% THC and approximately 2% – 4% CBD.

Cannabinoids are principally found within the cannabis plant’s flowering buds, and not within the stalk, seeds or fiber. For a cannabis plant to express more than 12% CBD, it typically contains more than 0.3% THC.1

Unlike marijuana, it takes many acres of cultivated hemp to produce significant amounts of CBD. As a result, hemp is a rather inefficient source of CBD and other cannabinoids.

This can create a serious health concern, since hemp (and marijuana) accumulates toxins such as heavy metals. The plant, considered a bioaccumulator, pulls environmental toxins (and more) right out of the soil. It’s part of the reason why farmers like to grow hemp in rotation with other crops.

Hemp improves the quality of the soil each time it is cultivated – by naturally removing toxic chemicals absorbed through its roots, stems and stalk and storing them within the plant.

When hemp is used to produce CBD extract (oil), it is crucial that the soil be free of heavy metals and dangerous impurities. In commercial hemp production, the quality or toxic load of the soil is untested and unregulated. In addition, pesticides and fertilizers used for hemp production are also bioaccumulated within the plant.

In order to obtain significant quantities of CBD, many acres of hemp must be cultivated, processed and concentrated. When processing hemp for CBD, these bioaccumulated toxins are also concentrated. This is why it is so important to properly regulate and test CBD oil to ensure it does not contain significant levels of pollutants and toxins which can harm those that consume it.

An excellent source of CBD can be found at your local medical or recreational dispensaries. Legally sold in more than half the country, purchasing regulated CBD-rich flower, concentrates and edibles from a legal dispensary is the best way to enjoy the benefits of cannabidiol. Plus, high-CBD marijuana contains more of the plant’s complete phytochemistry – more closely resembling the pharmacology being tested in today’s clinical medical research.

Read more: Five Top High-CBD Marijuana Strains Reviewed


Read more: Five Top Low-THC Marijuana Strains Reviewed

Will CBD or Marijuana be Rescheduled?

It appears unlikely that the FDA, DEA or Justice Department will move to reschedule or deschedule CBD or marijuana any time soon. AG Jeff Sessions has been a vocal detractor of medical marijuana and is on the record saying that “good people don’t smoke marijuana.” DEA acting administrator Chuck Rosenberg recently spoke out against any move to consider marijuana a medicine.

However Congress appears to be better informed on the benefits of marijuana and CBD. Several congressional bills are currently in committee within the 117th GOP led congress. Most notably, Senators Chuck Grassley (R) and Dianne Feinstein (D) have introduced the Cannabidiol Research Expansion Act. A bill that, if passed would ultimately deschedule (remove) CBD from the CSA. For more on what this bill could mean to medical marijuana research, click the link below…


1De Meijer E. The chemical phenotypes (chemotypes) of cannabis. In: Pertwee RG, editor. Handbook of Cannabis. London: Oxford University Press; 2014. p. 99.

2U.S. Food and Drug Administration. 2015 warning letters and test results. Silver Spring, MD: U.S. Food and Drug Administration; 2015.

3U.S. Food and Drug Administration. 2016 warning letters and test results. Silver Spring, MD: U.S. Food and Drug Administration; 2016.

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