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Is CBD Legal in All States? Ask an Expert

Posted by Jim Higdon on Jul 1st 2020

Is CBD Legal in All States? Ask an Expert

Is CBD Oil Legal?

What everyone needs to know

Cannabidiol, or CBD, is one of the most popular plant extract in the United States right now. But is CBD legal in 2021? At Cornbread Hemp, we get these questions a lot: Is CBD legal in your state? Can you get through airport security with CBD products?

The answer is, at least at the federal level, hemp and hemp-derived CBD products are 100% legal, as long as THC doesn't exceed 0.3 percent. But state laws vary, rather significantly in some cases.

This has caused CBD consumers a good deal of concern. Most states have come into line with new federal laws that legalized CBD products. But it can be tricky out there when you cross state lines with CBD oil.

Here’s our Cornbread Hemp guide to CBD laws in 2021. We are here to help, but we are a CBD brand, not a law firm. This is not legal advice and is to be used for informational purposes only.

Is CBD Federally Legal?

The best way to understand current hemp laws is to start from the beginning. Here's a quick history of hemp in America. Is CBD legal federally? Keep reading to learn more.

History of Hemp

Hemp was legal in America from the beginning of the Republic in 1776. When New Orleans opened up to American river traffic in 1788, Kentucky hemp was one of the first commodities to arrive at the river port on Decatur Street, along with whiskey and tobacco. For as long as there's been Kentucky bourbon on Bourbon Street, there's been Kentucky hemp in New Orleans.

Through the 19th century, the American hemp industry thrived, as it was grown mostly for rope for the shipping industry and twine for the cotton industry. In the early 20th century, American hemp declined in value due to cheaper overseas competition. Through it all, Kentucky was the center of the American hemp industry.

In 1937, prohibitionists convinced Congress to pass the Marihuana Tax Act. This new law made all forms of cannabis illegal in America, including Kentucky hemp. But four years later in 1941, America entered World War II. That created a new demand for domestically grown hemp. Starting in 1942, the government urged American farmers to grow "hemp for victory," especially in Kentucky.

When the war ended in 1946, the hemp program ended, too. And hemp returned to its prohibited status. Farmers stopped growing it, but volunteer hemp continued to flourish along the fencerows in the fields where it once grew.

When Did the War on Drugs Start?

In 1970, at the height of the Vietnam War, President Nixon doubled down on the hemp prohibition to pass the Controlled Substances Act and to create the Drug Enforcement Administration, or DEA. The Controlled Substances Act declared hemp plants to be as dangerous as heroin by making them both Schedule I drugs. And the DEA began cracking down on all forms of cannabis, ensuring that hemp would remain illegal for decades to come.

In the 1980's, President Reagan increased the intensity of the War on Drugs, which was a war on people, particularly Black people and other minority communities. Subsequent administrations failed to address the problems of the Drug War. And that kept hemp illegal for a few more decades.  

Beginning in the mid-1990's, the concept of legalizing "medical marijuana" took root at the state level, starting in California in 1996. As medical marijuana caught on, the push to legalize marijuana for recreational purposes picked up steam, finally passing in Colorado in 2012. This put pressure on Congress to act.

Is Hemp Legal?

Finally in the 2010's, Congress did the smallest thing it could to legalize cannabis without actually legalizing cannabis. And that was to legalize hemp, as long as the THC level stayed below 0.3 percent THC.

The first act by Congress to re-legalize a portion of the cannabis plant was the Agriculture Improvement Act of 2014, commonly referred to as the Farm Bill. A one-page addition to the Senate version of the bill created hemp pilot programs that allowed the hemp industry to begin to regrow after nearly a century of prohibition. It was signed into law by President Barack Obama.

The Farm Bill gets passed every five years by Congress. The 2014 Farm Bill was supposed to pass in 2013, but was held up by Congressional dysfunction.1 Four years later, the 2018 Farm Bill made those pilot programs permanent. It was signed into law by President Donald Trump. Since then, federal authority over hemp has been removed from the Department of Justice and placed under the control of the U.S. Department of Agriculture, where it belongs.

After the 2020 elections, there are now 35 states with medical marijuana programs. And there are 15 states (plus the District of Columbia) where recreational marijuana is legal.

When Did CBD Oil Become Legal?

Before the 2014 Farm Bill, the only places you could find CBD oil was in legal marijuana states. No one thought about CBD oil becoming legal nationwide. But when Congress made hemp legal under the Farm Bill, it did so in a way that gave an opening to nationwide cannabinoid legalization. Congress made hemp legal by changing its definition to mean any cannabis plant with a THC level below 0.3 percent.2 

Before Congress changed its definition, hemp was considered to be a tall, fibrous variety of cannabis that was good for fiber and seeds, but not for cannabinoids. But when Congress defined hemp by its THC content, it opened the door to create varieties of cannabis with a compliant level of THC and a high level of other cannabinoids, like CBD.

Almost overnight, cannabis breeders perfected strains that complied with federal laws on THC with a high CBD content. This created a marketplace for cannabinoid hemp out of thin air for products like CBD oil. Then, in the 2018 Farm Bill, cannabinoid hemp and CBD oils were explicitly protected. And that's how CBD oil became legal so quickly.

Flying With CBD Oil

We know that CBD doesn’t get you high, but what about TSA and CBD oil? Can you take CBD on an airplane? Yes! Thanks to a change in policy from the TSA.3 What are the TSA rules about carrying CBD oil on a flight? It's simple: you can safely carry CBD products in your carry-on luggage as long as it meets TSA regulations for liquids under 3.4 ounces (or 100 ml).

Cornbread Hemp's CBD oils come in one-ounce bottles (30 ml), so it is officially TSA-compliant. So yes, you can fly with Cornbread in your carry-on luggage. (And it's OK in your checked baggage, too!)

Can You Mail CBD Oil?

Yes! The US Postal Service announced its guidelines on shipping CBD and hemp products through the mail. Also, UPS affirmatively stated that shipping CBD products is in line with their policies. Neither the USPS nor UPS have states blacked out in no-go zones, which means we can ship to all 50 states and US territories.4

This has calmed the fears of CBD consumers who receive their CBD products by USPS or UPS. It makes a real difference to know that the USPS and UPS are cool with shipping CBD oil. That's a big step towards integrating cannabis comfort into mainstream American life.

Where to Buy CBD?

There's no need to go anywhere to buy top-quality CBD products. You can literally buy CBD oil right here! Just make sure you always look for the USDA organic seal on CBD products. Without the organic seal, there’s just no certainty what’s inside the non-organic, conventional CBD product.

To get the USDA organic seal on CBD products, a company must go through a rigorous set of audits, paperwork, and inspections. It’s not an easy process. Be very wary of CBD products that claim to be "organic" or "organically grown" but lack the USDA organic seal.

With the USDA organic seal, a CBD product can prove it has never been contaminated by pesticides, heavy metals, microbial contaminants, or residual solvents. We also verify our manufacturing process with a third party lab test.

Is CBD Legal in All States?

Some state laws are still backwards. That means CBD laws can vary widely depending on where you live. That's why it's important to know federal and state laws, and any state you plan on visiting or passing through. After all, a grandmother got arrested for CBD possession at Disney World in Florida.

Did that really happen? Yes, it sure did in April 2019.5 Florida lawmakers passed a law so that this doesn’t happen again. But the problem is: this story of the grandmother getting busted at Disney keeps bouncing around the internet. And that causes confusion.

So let’s cross state lines with Cornbread Hemp, and see what happens! Here's a quick breakdown of what is legal where, with four different types of cannabis: CBD oil, hemp flower, medical marijuana, and recreational marijuana. CBD is legal in at least 47 states, but hemp flower is legal in fewer states. Hemp flower looks and smells just like marijuana, just without the THC content. Medical marijuana is legal in at least 35 states, and recreational marijuana is legal in at least 15 states, plus the District of Columbia.6

But just because a state has legal marijuana does not necessarily mean that state is also cool with CBD oil in every respect. Actually, some of the quirkiest CBD laws come from states with mature cannabis markets, perhaps because marijuana businesses feel threatened by legal hemp-derived CBD oils.

Is CBD Legal in Ohio?

After much back and forth between the Ohio Board of Pharmacy and local governments, CBD oil is finally legal in Ohio.

  • CBD oil: Yes.
  • Hemp flower: Yes
  • Medical marijuana: Yes
  • Recreational marijuana: No

Is CBD Legal in California?

California is lagging behind states like Texas and Kentucky on its CBD laws. As of the end of June 2019, a bill in the California legislature to legalize CBD products has passed the Assembly, but still has a ways to go to become law. So for the time being, it appears buying CBD in retail stores in California is not yet legal.7

  • CBD oil: Legal to possess, but not legal to sell in retail as of 2020.
  • Hemp flower: Not legal for retail sales, but it's California so possession is fine.
  • Medical marijuana: Yes.
  • Recreational marijuana: Yes.

Is CBD Legal in Texas?

In June 2019, Texas Gov. Greg Abbott signed a new law that legalized CBD products in Texas.8 That means: CBD oil is legal in Texas, as long as it's hemp derived with 0.3 THC.

  • CBD oil: Yes.
  • Hemp flower: As of late 2020, this is being fought in court. The state tried to ban hemp flower, but a judge ordered the ban lifted until the trial starts in February 2021.9
  • Medical marijuana: No.
  • Recreational marijuana: No.

Is CBD Legal in North Dakota?

North Dakota is a place that people in other places don't think about much, but don't let this square state fool you. There's some cool stuff going on in North Dakota, like curling! And also legal medical marijuana. There will be a vote in 2022 to legalize recreational marijuana in the Fargo state.10 

  • CBD oil: Yes
  • Hemp flower: Yes
  • Medical marijuana: Yes
  • Recreational marijuana: Not until 2022.

Is CBD Legal in South Dakota?

Maybe as a reaction to its cooler cousin to the north, South Dakota is decidedly not cool with cannabis. South Dakota was the 47th state to legalize CBD oil, in 2020.11 

  • CBD oil: Finally, yes.
  • Hemp flower: No.
  • Medical marijuana: Passed in 2020.
  • Recreational marijuana: Also passed on 2020, making South Dakota the first state to legalize medical marijuana and recreational marijuana at the exact same time. This means your next trip to Wall Drug might be a little more fun than your last visit.

Is CBD Legal in North Carolina?

North Carolina is one of those places that is still against legal marijuana, but where hemp flower is legal. It might sound crazy but it's true. As of late 2020, hemp flower is legal in North Carolina.12 

  • CBD oil: Yes.
  • Hemp flower: Yes.
  • Medical marijuana: No.
  • Recreational marijuana: No.

Is CBD Legal in South Carolina?

Unlike the Carolina to its north, South Carolina is not cool with smokable hemp flower. This is the same dynamic between North Dakota and South Dakota. Someone should look into that.

  • CBD oil: Yes.
  • Hemp flower: Absolutely not, according to the SC attorney general in 2019.13 
  • Medical marijuana: No.
  • Recreational marijuana: No.

Is CBD Legal in West Virginia?

The Mountain State has followed the lead of its neighboring states of Pennsylvania, Ohio, and Maryland by legalizing medical marijuana in 2017. As of late 2020, there are not yet legal medical marijuana sales, but things are moving in the right direction.14 

  • CBD oil: Yes.
  • Hemp flower: Yes.
  • Medical marijuana: Yes, eventually.
  • Recreational marijuana: No.

Is CBD Legal in New Jersey?

Going to the Jersey Shore can be a lot more chill now that New Jersey is getting right with cannabis. In November 2020, New Jersey citizens voted to legalize recreational marijuana, giving fresh meaning to "the Garden State." Also, CBD products are legal in New Jersey.

  • CBD oil: Yes.
  • Hemp flower: Yes.
  • Medical marijuana: Yes.
  • Recreational marijuana: Passed in November 2020.

Is CBD Legal in New Mexico?

New Mexico is known as the Land of Enchantment, and everyone knows that New Mexico has the best state flag design. But is CBD legal there? The answer is yes, the Drug War is nearly ended in New Mexico. The state legislature failed to legalize recreational marijuana in 2020, but full legalization in New Mexico is inevitable.15 

  • CBD oil: Yes.
  • Hemp flower: not expressly forbidden.16
  • Medical marijuana: Yes.
  • Recreational marijuana: Decriminalized, but not yet legal.

Is CBD Legal in New York?

The trend in the Empire State is moving in the right direction for drug laws, especially as it relates to hemp and full-strength marijuana. The reality is that state government in Albany moves slow, and things can get weird.

  • CBD oil: It appears that New York State's new CBD regulations require local CBD producers to label their products as "dietary supplements," in violation of current FDA rules.17 But yes, CBD is legal in New York.
  • Hemp flower: Unclear.
  • Medical marijuana: Yes.
  • Recreational marijuana: Eventually.

Is CBD Legal in Kentucky?

Kentucky is one of the best places in the world to grow cannabis, which is a fact that more people are learning every day. Unfortunately, Kentucky's political leaders have not yet fully embraced the cannabis economy, forcing us to baby-step this process. Yes, CBD oil is legal in Kentucky, and that's a good thing. But Kentucky farmers are not yet allowed to sell hemp flower to the public. That's a problem we need to solve.

  • CBD oil: Yes.
  • Hemp flower: No. Kentucky is one of the few states that expressly prohibits smokeable hemp.18
  • Medical marijuana: This would have passed in the 2020 legislative session, but the COVID lockdown cut the session short.19 
  • Recreational marijuana: Not yet.

Is CBD Legal in Florida?

After the police at Disney World arrested that great-grandmother for possessing CBD oil, things have gotten better for CBD in the Sunshine State. In short, CBD oil is legal in Florida.

  • CBD oil: Yes.
  • Hemp flower: Unclear
  • Medical marijuana: Yes, passed by constitutional amendment in 2016 with 71 percent of the vote.
  • Recreational marijuana: Likely on the ballot in 2022.

Is CBD Legal in Illinois?

Illinois has taken a leadership role among Midwestern states by how they have changed Illinois cannabis laws in Springfield. In short, CBD oil is legal in Illinois.

  • CBD oil: Yes
  • Hemp flower: Yes
  • Medical marijuana: Yes
  • Recreational marijuana: Yes

Is CBD Legal in Virginia?

Virginia was once a slave-owning Southern state, but now it's trending towards a Blue State with the help of the DC suburbs in Northern Virginia. In short, yes: CBD oil is legal in Virginia.

  • CBD oil: Yes.
  • Hemp flower: Unclear
  • Medical marijuana: Yes, in a limited program
  • Recreational marijuana: Possibly in the 2021 legislative session

Is CBD Legal in Nebraska?

Nebraska is a conservative state that borders Colorado, which is a very legal state. This means that Nebraska has had a tough time coming to terms with the new reality of cannabis legalization. Now that South Dakota to its north has fully legalized cannabis, it's going to make it much tougher for conservative Cornhuskers to continue to deny that times have changed. Yes, CBD oil is legal in Nebraska, if only just barely.

  • CBD oil: Yes.
  • Hemp flower: Probably not.
  • Medical marijuana: Not until 2022, at the earliest.
  • Recreational marijuana: Absolutely not.

Conclusion: CBD Laws Can Be Confusing

As this post indicates, the laws surrounding CBD oil, hemp flower, and the varying degrees of marijuana legalization state-by-state is quite confusing. Until Congress legalizes cannabis under federal law, this legal patchwork will continue.

References

1.

O’Keefe, Ed “Farm bill passes after three years of talks” Washington Post. 4 Feb, 2014. Accessed: 22 Nov, 2020. https://www.washingtonpost.com/news/post-politics/wp/2014/02/04/farm-bill-passes-after-three-years-of-talks/

2.

Hudak, John, "The Farm Bill, Hemp Legalization And The Status Of CBD: An Explainer." 2nd paragraph, 2nd sentence. Brookings Institute, 2018. Accessed 22 Nov, 2020. https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/  

3.

“Medical Marijuana,” Transportation Safety Administration. Accessed 22 Nov, 2020 https://www.tsa.gov/travel/security-screening/whatcanibring/items/medical-marijuana

4.

S Postal Service. “Publication 52 Revision: New Mailability Policy for Cannabis and Hemp-Related Products” Effective: June 6, 2019. Accessed: 22 Nov 2020: https://about.usps.com/postal-bulletin/2019/pb22521/html/updt_002.htm 

5.

Elwood, Karena. "Grandmother arrested with CBD oil at Disney reacts to release of video: ‘You don’t treat people like this’" Orlando Sentinel. 24 May 2019. Accessed: 22 Nov, 2020: https://www.orlandosentinel.com/news/breaking-news/os-ne-grandma-arrested-cbd-video-footage-20190524-wzj64fb23vggvao7osdficgfxa-story.html 

6.

Jaeger, Kyle, "Every Single Marijuana And Drug Policy Ballot Measure Passing On Election Day Bolsters Federal Reform Push" Marijuana Moment. 4 Nov, 2020. Accessed: 22 Nov, 2020: https://www.marijuanamoment.net/every-single-marijuana-and-drug-policy-ballot-measure-passing-on-election-day-bolsters-federal-reform-push/ 

7.

Bridge, Stephen. "California State Assembly Authorizes CBD For Food and Health Supplements" CBD Testers, 2019. Accessed 22 Nov, 2020: https://cbdtesters.co/2019/06/21/california-authorizes-cbd-food-supplements/ 

8.

McGaughy, Lauren "Gov. Greg Abbott signs law legalizing hemp production, CBD products in Texas" Dallas Morning News. 11 June 2019. Accessed: 22 Nov, 2020. https://www.dallasnews.com/news/texas-legislature/2019/06/11/gov-greg-abbott-signs-law-legalizing-hemp-production-cbd-products-texas

9.

Adlin, Ben, "Texas Ban On Smokable Hemp Lifted Until 2021, Judge Rules" Marijuana Moment, 21 Sept, 2020. Accessed: 22 Nov, 2020. https://www.marijuanamoment.net/texas-ban-on-smokable-hemp-lifted-until-2021-judge-rules/

10.

"North Dakota Marijuana Legalization Statutory Initiative (2022)" Ballotpedia. Accessed 22 Nov, 2020. https://ballotpedia.org/North_Dakota_Marijuana_Legalization_Statutory_Initiative_(2022)

11.

Anderson, Patrick. "CBD takes hold in South Dakota as retailers embrace hemp-based compound" Argus Leader. 24 Sept 2020. Accessed 22 Nov, 2020: https://www.argusleader.com/story/news/business-journal/2020/09/24/south-dakota-retailers-embrace-hemp-based-compound-cbd/3502574001/ 

12.

Ewen, Beth "Carolina Hemp Co. attracts true believers in CBD" Franchise Times, 28 Sept 2020. Accessed: 22 Nov, 2020: https://www.franchisetimes.com/franchise_news/carolina-hemp-co-attracts-true-believers-in-cbd/article_85744272-4cf7-5207-9222-24e7eddd8844.html

13.

Cook, Robert. Letter to Chief Mark Keel. Office of the Attorney General of South Carolina. 10 July 2019. Accessed 22 Nov, 2020: https://htv-prod-media.s3.amazonaws.com/files/keelm-os-10372-final-opinion-7-10-2019-cook-02014949xd2c78-1563980587.pdf

14.

Abbott, Graham, "West Virginia Chooses Metrc as Traceability Vendor" Ganjapreneur. 23 Oct, 2020. Accessed 22 Nov, 2020. https://www.ganjapreneur.com/west-virginia-chooses-metrc-as-traceability-vendor/

15.

"New Mexico Fails To Legalize Recreational Marijuana, But There's Always 2021" Green Entrepreneur. 2020. Accessed 22 Nov, 2020: https://www.greenentrepreneur.com/article/347170

16.

Bougenies, Nathalie. "Hemp CBD Across State Lines: New Mexico" Harris Bricken Law Firm. Accessed: 22 Nov, 2020: https://harrisbricken.com/cannalawblog/hemp-cbd-across-state-lines-new-mexico/

17.

Thorne, Griffen. "Hemp CBD Across State Lines: New York" Harris Bricken Law Firm. Accessed 22 Nov. 2020: https://harrisbricken.com/cannalawblog/hemp-cbd-across-state-lines-new-york/ 

18.

Thorne, Griffen. "Hemp-CBD Across State Lines: Kentucky" Harris Bricken Law Firm. Accessed 22 Nov, 2020: https://harrisbricken.com/cannalawblog/hemp-cbd-across-state-lines-kentucky/

19.

Sonka, Joe. "House passes medical marijuana bill in first approval of its kind in Kentucky" Courier-Journal. 20 Feb, 2020. Accessed 22 Nov, 2020: https://www.courier-journal.com/story/news/politics/ky-legislature/2020/02/20/kentucky-house-passes-medical-marijuana-bill-historic-vote/4819639002/

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