Learn About the Laws & Regulations

The 2018 Farm Bill removed hemp from the Controlled Substances Act did not affect or modify the Federal Food, Drug, and Cosmetic Act (“FDCA”) or the Food and Drug Administration’s (“FDA”) ability to promulgate regulations and guidelines that relate to hemp under. The FDA regulates a wide variety of medical and consumer products sold in the United States including food, drugs, dietary supplements, medical devices, cosmetics, and tobacco products.

The FDA has approved the use of CBD in the prescription drug Epidiolex. As a result, the FDA has indicated in press releases, enforcement letters, and its website that Hemp CBD cannot be used in foods, beverages, or dietary supplements. This is because, under the FDCA, any article that is investigated as a new drug cannot be used in food, beverages, or dietary supplements unless the article was widely marketed in those products prior to the drug investigation.

In addition, the FDA has taken a hard line against Hemp CBD in unapproved drugs. The FDA determines whether something is a drug based on its intended use, and determines a product’s intended use, in turn, based on how it is marketed. If a manufacturer or distributor makes any type of health claim (“CBD cures cancer” or “CBD may treat inflammation”) or human structure claim (“CBD may increase levels of calcium in bones”) about a product that the FDA has not investigated and approved as a drug, the FDA will consider it a drug. Foods, ingredients in foods, drugs, and dietary supplements are all subject to premarket FDA approval.

The FDA also regulates tobacco and nicotine tightly but does not have clear regulatory authority over smokable hemp products, such as dried flower, e-liquid, and vape pens. That’s because generally, these products don’t contain any tobacco or nicotine. To clarify, the FDA likely could have regulatory authority over these products, but it has not established a clear jurisdictional hook.

Though the FDA is a federal agency, its policies have a significant impact on the states. Some states have aligned themselves with the FDA’s position. Others have taken a more permissive approach. Many states have provided little to no guidance on the subject of Hemp CBD.

 Hemp vs Marijuana 

To better understand what hemp is, we first need to explore what it is not. Simply put, hemp is not marijuana. Yes, both of these plants are variants of the cannabis genus, but that’s where the comparison should end.

Legally speaking, the primary distinction between hemp and marijuana has to do with the psychoactive compound tetrahydrocannabinol (THC). As you might already know, THC is the chemical that gets users “high.” Hemp has minimal THC (less than 0.3 percent), while marijuana has a lot of THC. Typically, hemp strains contain high concentrations of the non-psychoactive cannabinoid cannabidiol (CBD). 

Although the 0.3 percent cutoff is somewhat arbitrary, the split between hemp and marijuana still holds great importance for cultivators. In addition to cannabinoid count, there are a few physical distinctions that are worth noting. 

For instance, hemp plants usually grow taller and have thinner leaves compared with most marijuana strains (especially Indicas). Hemp leaves are also almost exclusively clustered around the plant’s top. By contrast, many marijuana strains have fat leaves that are spread fairly evenly throughout the stem. 

 CBD vs THC

“So how do we make a distinction when … basically looking at the plant structure, you really can’t tell the difference?” DeBacco, one of the cannabis course professors, asked us on the campus quad after class (located in the university’s largest lecture hall, due to its popularity).

His answer: “You’ve got to go beyond what they look like to the chemical profiles.”

Scientists suspect cannabinoids protect the plant from UV rays, much like sunscreen does for human skin.

Both THC and CBD are members of a chemical family called cannabinoids. Cannabinoids are plants oils, and cannabis comes packed with more than 100 versions of them.

Scientists suspect cannabinoids protect the plant from UV rays, much like sunscreen does for human skin. They think that because up to a quarter of a cannabis plant’s weight can come from just cannabinoids — and cannabinoid levels change with light exposure. “At the top of the plant, you’ll get more cannabinoids, compared to flowers that are at the lower end of the plant,” graduate student Peter Apicella said.

Cannabis makes most of its cannabinoids in its flowers, which are more commonly called “buds.”

“If they don’t get pollinated, the buds will essentially just keep growing and keep producing cannabinoids,” Apicella said.

This is true of both CBD and THC. The only chemical difference between them comes down to a couple of chemical bonds.

All cannabinoids start out as a bit of sugar, which hitchhikes around the plants’ enzymes, changing its identity, bit by bit, with each ride. In some cases, this wandering sugar reaches a crossroads, where it can either can bum a ride from one of two enzymes: THC-a synthase or CBD-a synthase. One route leads to becoming THC, the other to becoming CBD.

But in hemp, THC synthase is genetically dormant, Apicella said. As a result, some hemp plants can make loads of CBD because there is no internal competition for making THC.

“With other highly valuable crops — like saffron or vanilla — you get a small percentage of the plant that’s actually usable yield,” Apicella explained. But with hemp, “it’s a huge amount.” Some strains have been upwards of 12 to 15 percent CBD by weight.

How can CBD become THC?

Thanks to the “miracle” of reproduction, a hemp crop can start off making only CBD and then unwittingly turn into a THC-laden field of marijuana.

Let’s just say that again because it is a bit mind-blowing. A hemp crop — that is federally legal and only makes CBD — can become marijuana. Studies have found that if two certifiable hemp plants hook up, most of their offspring will be able to make THC. In fact, some of these seedlings will ONLY make THC.

The wild card for hemp growers is pollination. Most flowering plants boast both male and female parts. They are hermaphrodites that can mate with themselves. But a cannabis plant is an exception, in that it is almost always either female OR male. And when the plants reproduce sexually, their traits mix, and once dormant genes — like those behind THC production — can suddenly be replaced with active versions.

Any biological organism is going to fluctuate — a variable that farmers and growers are always really concerned about, Apicella said.

So, to prevent sexual reproduction, UConn’s greenhouse smashes the (cannabis) patriarchy. You don’t want a male in your greenhouse, Apicella said: “If there’s a male, your whole crops can be destroyed.”

So, UConn’s greenhouses only grow female hemp plants — all of them are clones. There is even a small pistil — called a preflower — on young plants that allow horticulturists to identify females without a genetic test.

To grow an all-female group, “you snip a part of a plant off, and you put it in soil with a little rooting hormone and that cutting is actually genetically identical to that first mother plant that you took from,” Apicella explained, raising his arms, and pointing to a long row of hemp plants. “So, these are all genetically identical to one of the mother plants we have in here.”

Keeping a greenhouse all-female is easy, but it is a different story growing hemp outdoors.

Cannabis is abundant in the wild — meaning an outdoor hemp field is one gust of pollen away from accidentally breeding marijuana.

 Another way THC sneaks into your CBD bottle

To collect CBD or THC from hemp, farmers harvest the plants and send them to an extractor, who collects the drugs and preps them for sale. The issue is that extracting CBD or THC is essentially the same process. If your supplier does it incorrectly, your CBD bottle might carry an illegal dose of THC.

“It happens all the time,” said Rino Ferrarese, COO of the medical marijuana extractor CT Pharma, who is frustrated by low-quality and tainted products flooding the CBD market. Under Connecticut law, Ferrarese’s company must ensure their products match the labels on their bottles — which they accomplish through pharmaceutical-grade extraction.

Ferrarese said many states across the country do not hold their CBD suppliers to the same standards and federal enforcement is lacking.

“What a lot of consumers don’t realize is that the FDA, who’s charged with protecting our safety with respect to food and medicine in the U.S., are not on top of policing those CBD products that you see in the gas station or at the grocery store,” Ferrarese said. “A lot of these products are also not under the purview of departments of public health either.”

As a lark, he and others at the company keep tabs on the sloppy and sometimes illicit products flooding the CBD market. Ferrarese said the results vary widely, and rarely do these products ever meet the claims on their labels.

“Whenever we see CBD at a gas station or in a retail location, we purchase it and we send it to our independent third-party laboratory,” Ferrarese said. “Sometimes it even contains THC in the bottle when it’s not supposed to. It’s really a crapshoot.”

Extractors can prevent THC from entering a CBD supply. To sap CBD or THC from plant material, all extractions use a chemical solvent. That sounds nefarious, but a solvent is any substance that can dissolve another. Water, for instance, is one of nature’s best solvents — but it wouldn’t be effective for something like this.

“In Connecticut, we’re limited to using only [liquid] carbon dioxide as a solvent for extraction or ethanol as a solvent, Ferrarese said. “In other states, such as Colorado and California, they’re allowed to use solvents like butane.”

Liquid carbon dioxide and ethanol come with distinct advantages. Carbon dioxide is very efficient at stripping cannabinoids from plants, but it must be kept at cold temperatures — -70 degrees Fahrenheit — to stay liquid.

Ethanol extraction, meanwhile, can be conducted at warmer temperatures in a process similar to making liquor, said Kimberly Provera, the operations manager at CT Pharma.

“There is a process called fractional distillation, where you can actually isolate different cannabinoids,” Provera said. “Each cannabinoid will separate based on a specific temperature…so you can isolate just CBD and THC.”

Once the gooey cannabinoids are separated, they add a little heat. The carbon dioxide and ethanol will eventually evaporate, leaving behind pure CBD or THC — but only if the extraction is done properly.

If your supplier makes a mistake, it might taint your CBD with THC — a consequence that can be problematic if your job randomly drug tests. Poor extractions can also leave behind chemical solvents, which is hazardous in the case of butane, or even pesticides.

“There is a certain consumer expectation that we have here in America when we interact with our products, and cannabis should be no different,” Ferrarese said. “Cannabis, as consumer-packaged goods, should have to meet those same standards for purity, identity, and composition.”

Before you buy CBD, ask the store how its extracts were made and if they are validated by a third-party tester.

Can You Carry CBD on a Plane?

The TSA recently updated its policies to allow an FDA-approved marijuana-based drug as well as CBD products produced in line with the Farm Bill requirements. Now, passengers are permitted to bring CBD derived from hemp (that contains 0.3% or less of THC) as a carry-on.

Though technically allowed, exercise caution when traveling. Since most states do not yet have guidelines in place for testing products, your CBD product might contain more THC than advertised. If your CBD product happens to contain THC levels higher than 0.3%, TSA may call a law enforcement officer, although these situations are rare. 

CBD is Not Yet Legal in All its Forms

The Farm Bill grants the Food and Drug Administration’s (FDA) authority to regulate products containing cannabis or cannabis-derived compounds, including CBD, under the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act. 

If a product is meant to be used as a drug, food, dietary supplement, or cosmetic, and that product is sold across state lines, then it is subject to FDA regulation.

The FDA is currently evaluating CBD's safety. For now, its stance is that products that add CBD to food or label CBD as a dietary supplement are not legal for interstate commerce. 

What does that mean? 

• CBD food products and supplements can be sold within their state or origin (if they are legal there). If a company grows and harvests hemp in Colorado, it can sell CBD gummies made from that hemp in Colorado.

• CBD products explicitly labeled as a food or dietary supplement cannot be sold across state lines. Those Colorado made CBD gummies? They cannot be sold in California—unless the company gets creative with their labeling.

• Products labeled as “active hemp extract” can often bypass these regulations and sell throughout the 50 states.

• Products that are not marketed as foods or supplements with medicinal effects of CBD are exempt from these regulations.

The regulations are still developing on the federal level.

States Have Their Own Sets of Laws

As you'll see below, each state has its own sets of laws and policies around CBD cultivation, distribution, manufacturing, sales, and possession. To further complicate the legal landscape, many of these states' legislatures are reviewing proposed amendments to existing laws. In several instances, regulating agencies are still in the process of developing regulations and procedures related to CBD.

Overall, most states permit the use of CBD for some specific medical conditions. However, laws vary from state to state. In short:

• Most states define legal CBD as the extract from hemp

• The amount of THC allowed for a product to qualify as CBD can range from 0.3% to 0.0%.

• CBD is federally legal, but a few states still place full or partial restrictions on the purchase of CBD products.

Find out how your state classifies possession of CBD below. When CBD is mentioned, it is referring to products containing no more than 0.3% THC and are derived from industrial hemp.