USA: To CBD or Not to CBD?

CCBD, CBD, it is legal in all 50 states! CBD is short for cannabidiol, which is one of at least 113 active cannabinoids (chemical constituent) identified in Cannabis.

A number of purveyors and entities selling hemp-derived CBD (versus what might be called whole plant CBD allowed in Florida under the Compassionate Medical Cannabis Act of 2014) claim it is effective to fight certain conditions and assert that industrial hemp derived CBD is federally legal, unlike marijuana. This claim can be seen in new store fronts across the country as well as many a web page touting industrial hemp-derived, CBD. In fact, we know this claim is not necessarily true, as demonstrated by the State of Missouri’s recent Petition for Injunction and other remedies against a number of hemp-derived CBD purveyors in Missouri.

Pursuant to Title 21 USC 802 Section (16) The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

Proponents of the position that hemp-derived CBD is legal, point to the lack of a specific definition under the above description and the Ninth Circuit’s opinion in Hemp Indus. Ass’n v DEA, 333 F.3d 1082 (9th Cir. 2003). They further buttress their belief by citing the DEA’s clarification of Hemp in the Federal Register released in October 2001 and the 2014 Farm Bills’ definition of Industrial Hemp. Much of the foregoing has been extended to even support opinions that hemp derived CBD from domestic sources under the Farm Bill is legal for distribution nationwide.

Opponents of the Hemp derived CBD is legal (putting aside the issues with imported hemp and contaminants etc.) argument point to the exception to the exception in the definition of “marihuana” i.e. to actually get a workable form of CBD from Hemp, the preparation of the stalk puts you into the resin category which is excepted from the terms that are specifically not included in “marihuana”. In regard to HIA v. DEA cited above, opponents posit that the court decision, never mentions CBD, and the HIA maintains that this ruling did not legalize CBD.

On August 11, 2016 perhaps muddying the waters even greater, the DEA, USDA and FDA as part of the rejection of rescheduling cannabis issued a Statement of Principles on Industrial Hemp (non-binding) which attempted to provide guidance especially as it pertains to the commercial sale of CBD under the auspices of state industrial hemp programs. The Statement, at face value seems to indicate domestically grown and processed hemp-derived CBD developed and sold under the state programs is impermissible under the 2014 Farm Act. Furthermore, the Statement made other broad assertions in regard to industrial hemp-derived CBD that could affect what heretofore has been a million dollar industry which proponents argue has provided relief to many individuals suffering from certain health conditions. While the Hemp Trade Associations have asked the USDA Secretary Tom Vilsack for clarification, as it stands today if industrial hemp CBD sales were in a gray area prior to August 11, they may now be in a dark gray area. The question is, will there be wholesale enforcement taken either civilly or criminally and ultimately should the resources even be expended in that regard?

Authored By: David Kotler, Esq., a former Miami Dade County Assistant State Attorney, is a partner in Cohen Kotler P.A., located in southeast Florida. In 2014, Mr. Kotler formed a practice area in Cannabis related law which allows him to draw from all of his practice areas to benefit his clients.


David C. Kotler, Esq.

Medical Marijuana Business Lawyers llc

(a practice area of CohenKotler P.A.)

54 SW Boca Raton Boulevard

Boca Raton, FL 33432


561/361-9770 (fax)


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