Federal/State Legality Of Industrial Hemp and CBD

Federal and California State Legality of Industrial Hemp and CBD


There is a great deal of confusion in the United States over the Federal legality of Industrial Hemp and its Marijuana cousin. The confusion is due to the fact that most law enforcers do not understand that the Cannabis Industrial Hemp Plant is lawfully and distinctly different than the Cannabis Marijuana Plant. The Marijuana Plant grows large flowers/buds that are mostly coated with THC Trichomes which create the illegal psychoactive effects of Marijuana.  These THC Trichomes are anywhere from 7% to 35% of the cannabinoids extracted from Marijuana.  There are only a few dozen strains of Marijuana plants which are bred to contain large amounts of CBD Trichomes.  When the CBD Trichomes are extracted and separated from the THC Trichomes of the Marijuana Plant, this CBD from Marijuana Plant is considered federally illegal in the U.S., due to the fact it was extracted from an illegal Marijuana Plant.  

Although the plants look similar, they have a completely different chemical makeup and Psychoactive content.  Marijuana gets you a Recreational high, while CBD, extracted from Industrial Hemp, does not get users high and is categorized as a health supplement.

Question:  Are Industrial Hemp Plants legally different from Marijuana plants?

Answer:    On February 7, 2014, President Obama signed the Farm Bill of 2013 into Law.  Section 7606 of the act, Legitimacy of Industrial Hemp Research. Defines Industrial Hemp as distinctly different from Marijuana.

Question:  What is Industrial Hemp and how is it defined in the 2014 Farm Bill?

Answer:  Industrial Hemp is the non-psychoactive, low THC, genetically distinct varieties of the plant Cannabis Sativa.  Hemp has absolutely no use as a recreational Drug.  Section 7606 of the Farm Bill defines Industrial Hemp below….

United States, as long as the plants contain only trace amounts of THC (.3%) and qualify as Industrial Hemp..

 (2) INDUSTRIAL HEMP.—“The term ‘‘industrial hemp’’ means the plant Cannabis Sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent THC on a dry weight basis.” 

Question:  Is Hemp that contains little to no THC (Industrial Hemp) , and its products, legal to import and sell in the United States? 

Answer:  Yes Imports are legal.  Hemp that contains 0.3 % THC and its products are legal to import and sell in the US. This is due to a 2003 Federal court case called Hemp Industries Manufacturers of Hemp Products VS  the Drug Enforcement Agency (“DEA”) overturned three DEA rules regarding hemp and THC. The primary overturned rule at issue for our purposes was the first one, which intended to interpret both the Controlled Substance Act and the DEA regulations to ban all naturally-occurring THC, including the THC found in hemp seed and oil, on Schedule I. 66 Fed. Reg. 51,530 (October 9, 2001) This rule, by being overturned, has made CBD legal for Industrial Hemp manufacturers to produce and sell their products in the United States.

 Question:  Now that States have set up Commercial Hemp Programs approved by the 2014 Farm Bill, is it legal for individuals and businesses to legally obtain CBD from within the US?

Answer:   The impact of state-based commercial hemp programs on CBD cannot be overstated. What this means, in essence, is that individuals and businesses can now legally obtain CBD from within the US. More importantly, they can extract it from the Industrial Hemp flower and leaves instead of the stalk. This should allow for better quality CBD than what can be obtained overseas from industrial stalks and from offshore companies that manufacture CBD as an afterthought or byproduct of other markets for industrial hemp, such as fabrics and construction materials. Additionally, because the Federal law allows the growth and cultivation of cannabis plants with up to 0.3% THC instead of trace amounts or less, US businesses can access a wider range of Industrial Hemp plants, including those specifically bred to have high concentrations of 0.3% THC. 

Question:  Where are we now with regards to the 2014 Farm Bill in producing, selling, transporting CBD to all 50 States?

Answer:   There were some problems with the way Congress legalized hemp.  The Farm Bill is silent on how to obtain or transport hemp seeds; the Farm Bill doesn’t specify what constitutes “research”; the Farm Bill is silent on the legality of hemp’s constituent compounds such as CBD; and the extremely low THC limits dampen legitimate research. But the most important problem with the Farm Bill, at least for the commercial sector, is that it does not contain a provision allowing hemp or its products, such as extracted CBD, to be transported from one state to another. This means that US grown hemp was to, at least according to the Farm Bill, remain inside the borders of the state in which it was grown.  That crucial limitation has now been lifted by a passage inside The Omnibus Appropriations Act of 2016 (P.L. 114-113) (“the Funding Act”), passed on December 18, 2015, contains a provision at section 763 that reads:

“None of the funds made available by this act or any other act may be used… to prohibit the transportation, processing, sale or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act (Farm Bill) of 2014, within or outside the State in which the industrial hemp is

grown or cultivated.”

Furthermore, given Judge Breyer’s opinion in USA v. Marin Alliance for Medical Marijuana, 3:98cv86 (NDCA), which found that the Justice Department unlawfully used funds prohibited from use under a similar omnibus appropriations bill.  With  regard to cannabis in its actions against a state-compliant cannabis business, this provision in the Funding Act is a tremendous victory for the hemp industry. Legal interpretation is that it allows industrial hemp and its component parts, such as CBD, to be processed, transported to, and sold in all 50 states, including states that haven’t enacted industrial hemp laws pursuant to the Farm Bill. This was a huge victory for the US Industrial Hemp and CBD industry.

State of California            

Products made from Industrial Hemp are not included and or regulated in the Medical Marijuana Bill AB1575, passed by state congress and signed into law by Governor Brown in October 2016.

Below is the Definition of Cannabis in the 2016 AB1575 bill Medical Marijuana (MMRSA) Section 19300.5.  "For the purpose of this chapter, “cannabis” does not mean “industrial hemp” as defined by Section 81000 of the Food and Agricultural Code and Section 11018.5 of the Health and Safety Code."

Definitions in 81000  D)“Industrial hemp” has the same meaning as the way industrial hemp term is defined in Section 11018.5 of the Health and Safety Code.

California Proposition 64  “Adult Use Marijuana Act” Passed November 8, 2016

  • Section 9. Industrial Hemp of AUMA amends Section 11018.5 of the Health and Safety Code is amended to read as follows:

11018.5. Industrial Hemp Definition of the Health and Safety Code

(a) "Industrial hemp" means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L  No more than three-tenths of 1 percent tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not;  the seeds of the plant;,the resin extracted from any part of the plant; and , manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or  produced therefrom,

  • (b) The possession, use, purchase, sale, cultivation, processing, manufacture, packaging, labeling, transporting, storage, distribution, use and transfer of industrial hemp shall not be subject to the provisions of this Division or of Division 10 of the Business and Professions Codebut instead shall be regulated by the California Department of Food and Agriculture in accordance with the provisions of Division 24 of the Food and Agricultural Code, inclusive….

More importantly, the Food and Drug Administration has made no determination or assertion that CBD products are illegal or in any way run afoul of the Controlled Substances Act (CSA) in the state of California.  As was established by the Ninth Circuit in 2004, the sale, production and distribution of CBD oils/products derived from imported raw material industrial hemp, such as those produced and sold are not in violation of the CSA. See Hemp Indus. Ass’n. v. DEA, 357 F.3d 1012 (9th Cir. 2004). In fact, this case stands for the proposition that naturally occurring cannabinoids are not unlawful under the CSA…

To sum up the California Law on Industrial Hemp… If Industrial Hemp grown in California contains under 0.3% THC value in a certified test, that bulk of tested Industrial Hemp will be considered Legal to process, manufacture, wholesale, retail and transport anywhere in the United States without needing a local or state permit.

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