Is CBD legal? A lawyer's take on hemp product safety

Is CBD legal? A lawyer's take on hemp product safety

Hemp and CBD are legal in the United States:

Hemp is a member of the cannabis family of “plants”. Marihuana is also a member of the cannabis family of plants.  As such, cannabis, in general,  has for many years been listed by the Drug Enforcement Agency (DEA) as a “controlled substance” which simply means that possession of this substance is illegal because the drug has no accepted medical use; however, in 2014 the United States passed a law which is commonly known as “2014 Farm Bill.”  Part of this bill included the “legalization” of the industrial production of hemp and hemp derived products. The hemp plant is made up of 113 (*some argue 100’s more) components or puzzle pieces if you will; one of these pieces is known as Cannabidiol or CBD. As such, CBD falls squarely within the legalization hemp production in the United States. 

Additionally, the 2014 Farm Bill outlined the rules for hemp growth and production. The approach was rather simple in nature. The 2014 Farm Bill established what was known as the “Hemp Pilot Program.” In the Pilot program, each state established a “hemp commission” which created rules that allowed farmers to grow hemp. The Pilot programs were designed to make sure the hemp strain of cannabis complied with the government regulations; in particular, the regulation which stated that the THC ( another component of the plant and part that gets you high) level had to be 0.3% or lower.  

The Pilot program was set for a three year term. The end result of the program was by all accounts a huge agricultural success. During this short three years the hemp industry exploded. The states complied with the hemp growing requirements and farmers and ultimately consumers benefited from a myriad of hemp products.

Because the Pilot program was set to expire, a new Farm Bill was signed into law on December 20, 2018. The formal name of this bill is The Agricultural Improvement Act of 2018 (“2018 Farm Bill”) The 2018 Farm Bill permanently extended the hemp Pilot programs.  Most importantly, this 2018 Farm Bill clearly answered the question: is hemp legal? The answer is Yes! “(B) The term ‘marihuana’ does not include-(i) hemp132 Stat. 5018 section 12619. As a direct result of this language contained in the 2018 Farm Bill, hemp, was removed from the list of the Drug Enforcement Administration’s “controlled substances.” Consequently, CBD which is part of the hemp plant is no longer a “controlled substance” provided the same is derived in compliance with the 2018 Farm Bill. The logical conclusion from the reading of this language is that the hemp plant has components which have “accepted” use to the public.

Federal vs. State: Know your state’s position on hemp

It is important that you fully understand the difference between what is “legal” federally versus what is legal on a state level. The term “federal” refers to the position of the United States government; conversely “state” refers to each individual state’s laws which dictate what is and is not legal in that state. For example, federally speaking, marihuana is illegal, it is listed as a controlled substance; however in over 30 states marihuana is legal and its use varies from medical only to recreational. Likewise, even though hemp and CBD is legal “federally speaking” some states have laws which treat it differently. As of the date of this blog, our research indicates that CBD is legal in all fifty states in one form or another. Again, each state will treat this issue differently. Some will require a “strict” interpretation of the THC component and prohibit any amount of THC despite the fact that the federal government has found that 0.3% is legal “federally.” Regardless of the variances which may exist from state to state, hemp is legal.  

Part of the “legality” of hemp resides in the source of the product. For example, only licensed hemp growers and licensed processors are approved to both grow and formulate products from the hemp plant. That is why it is so important that you know your source. At Kingdom Harvest, it’s simple: we know it because we grow it. All of our products are made from our flower. We don’t blindly purchase bulk flower from brokers hoping that the source complied with both state and federal law. We walk the flower through the entire process with the blessing of both the state and federal government.  As such, we can say with absolutely certainty that our products are fully legal.

Because hemp is legal in the United States, it is also legal to transport by mail or otherwise within the United States. According to the Federal Register, The Daily Journal of the United States Government“[t]he 2018 Farm Bill allows for the interstate transportation and shipment of hemp in the United States.” Accordingly, orders for hemp or products made from hemp which comply with established federal guidelines are perfectly acceptable to receive by mail or to purchase and transport within the United States.

Drug Tests and Hemp

As noted, the hemp plant is made up of 113 puzzle pieces or components. Because it is a cannabis plant, one of the components which receives direct attention is the THC piece. The formal name for THC is tetrahydrocannabinol. THC often causes a reaction which is psychotropic or euphoric; the more common reference to this reaction is “getting high.” Because THC does cause this reaction, employers routinely conduct drug tests which are designed to detect the presence of THC in their employees.  

The 2018 Farm Bill established hemp as legal. This means that the cannabis which is tested must have a THC level of less than 0.3%. In turn, it is very possible that a drug test may indicate positive when the employee is only using legal hemp products even though the THC level is both low and legal. Accordingly, it is important to purchase CBD products from a company which complies with the established law. For example, at Kingdom Harvest, because we grow our own hemp plants; we are intimately familiar with the testing process for the presence of THC. Each year when the plants begin to flower, we immediately alert the North Carolina Hemp Commission. The Commission then sends out a representative who independently takes samples of our plants; thereafter, these samples are tested by approved Commission laboratories. Our plants have routinely tested well below the 0.3 THC threshold. For example, our reports for the 2020 crop were just received from the State of North Carolina Hemp Commission; our flower was 0.1% THC. As such, we are well below the legal threshold of 0.3%.  

Will I pass a CBD oil drug test?

If you are still worried then we strongly encourage any customer who is routinely tested for drugs at their workplace to meet with their employer and inform them that they desire to use products which are made from hemp. This disclosure should be done prior to taking the product to ensure full workplace transparency.  We further suggest that a request to accommodate the use of legal hemp be made by the employee to the employer. A paper trail of the request and response would be a very good idea.  

Kingdom Harvest utilizes a Whole Spectrum™ approach to the processing of their hemp flower. This entails the preservation of as many of the 113 components as possible. If you are routinely tested and your employer refuses to acknowledge and approve of the use of legal hemp products then there are products which we sell at Kingdom Harvest which contain no legal amounts of THC and we stand fully ready to address your needs as they arise.  

Hemp is an ever evolving agricultural industry. We know it is legal. We know our customers sing praises about our products and we know a request for accommodation related to the use of hemp products is both reasonable and legal. We urge you to reach out to us and let us know how hemp has been received in your workplace.