Is Hemp CBD Flower Legal?

The topic of Hemp Flower, or CBD Flower, has been growing in popularity lately across the country. But one of the main questions over this is that of legality. Are the products these companies selling legal? Is it even really considered Hemp? We’re going to challenge these questions and see what answers we come across to enable you the ability to make an educated decision on whether this is a product you want to try.

The legalities surround the sale of CBD Hemp Products can be a bit convoluted. With the rise of popularity in products, state and federal laws are being challenged on the consumer level. Lately, some companies are putting out “Hemp Flower” for sale, also known as CBD Flower.

On the most basic level of understanding, “Hemp” is a legal term to classify any cannabis plant that contains less than 0.3% THC, and “Marijuana” is a legal term to classify any cannabis plant with over 0.3% THC. Note that when we discuss hemp vs marijuana in this article, we are speaking purely on legal terms and definitions.

Total THC, THC, or THCa?

Now, it’s important to note that many companies will include this excerpt from the Farm Bill of 2014 classifying Hemp: “…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 on a dry weight basis.”

This is important because there is significant debate on whether to use the TOTAL THC content of the plant (meaning THCa + THC) or just THC (excluding THCa) when discussing legality. Many “Hemp Flower” sellers provide disclaimers that the Farm Bill does not explicitly mention THCa or Total THC, so their products must be legal.

To understand why this is an important debate, you need to understand how cannabis grows. As the cannabis plant grows, it does not actually produce THC (or CBD, for that matter), it produces THCa (and CBDa and other cannabinoids), which are the acid precursors. Only through curing, drying, and decarbing do these acid precursors convert into the more commonly known THC and CBD. It’s not uncommon at all to find “raw” flower in a legal marijuana state with less than 0.3% THC, due to how the plant grows. You will, however, in that same flower find over 0.3% THCa, and thus, over 0.3% TOTAL THC. This article from Leafly has an excellent further explanation on decarboxylated cannabinoids and how the numbers are determined. 

Most industry professionals producing CBD products will err on the side of caution and tell you that you need to look at TOTAL THC when classifying a product as Hemp, rather than just THC. Otherwise, there’s a  loophole. Consider this: You’re in a legal recreational state and pick out some high CBD, low THC flower in a dispensary. The flower lists the THCa, THC, and Total THC content. The THC reads at 0.2%, THCa at 4%, and Total THC at around 3.7%.

Would this product be legal to use and take back to a non-legal recreational state? It would not be legal, but essentially you’re saying it is when you choose to believe you can exclude THCa from the definition of hemp. Most of these products online will have no where near 4% THCa, but the point still stands. Check the lab tests for most “Hemp Flower” you find online and you may be surprised to see the THCa and Total THC are over 0.3%.

Here’s another excerpt, this time from the “Statement of Principals” from the DEA and FDA regarding the Farm Bill of 2014:  “The term “industrial hemp” includes the plant Cannabis sativa L. and any part or derivative of such plant, including seeds of such plant, whether growing or not, that is used exclusively for industrial purposes (fiber and seed) with a tetrahydrocannabinols concentration of not more than 0.3 percent on a dry weight basis. The term “tetrahydrocannabinols” includes all isomers, acids, salts, and salts of isomers of tetrahydrocannabinols.”

The end part is often left out. It doesn’t say it explicitly, but “…includes all isomers, acids, salts…” can definitely be interpreted as including THCa.

The Debate Continues

Ignore the THC content for a moment and consider this: Is the Flower itself even a legal part of the cannabis plant? That’s another common debate. There’s belief that only certain parts of the Hemp plant itself are legal, meaning the stalk, stem and seeds can be used to produce products, but not the flower. The flower is where all the trichomes are that house the CBD goodness. It’s not very cost effective to pull CBD elsewhere, and you cant really even get it from the seeds since the seeds of the Cannabis plant don’t produce any cannabinoids whatsoever.

The debate on flowers has to do with more than the Farm Bill, causing us to turn our attention to the Controlled Substances Act and this: “CSA definition of marijuana, such as the flowering tops, resin, and leaves.” Meaning that these parts of cannabis are still considered Marijuana under the CSA, and only the other parts are able to be considered Hemp. This presents another debate on our more widely used CBD products and how they’re produced, and in this time of rising CBD popularity, more questions are being raised because of contradicting information and convoluted laws. There’s some belief that with the introduction of the Farm Bill of 2014, the CSA definitions no longer applied.

The point is, we can’t tell you 100% whether or not these products are legal, so our stance is to err on the side of caution. The purpose of this article was not to tell you not to purchase these, but to help you make an education decision on which side of the debate you’re on. There are even more debates than the ones mentioned, but we encourage you to consider the above when you come across these products.

Sarah Jorczyk is an advocate for CBD products and one of the Administrators of the CBD Oil Users Group on Facebook. She strives to educate the public, and promotes the use of safe products while helping others throughout their CBD journey. You can also find a variety of her content, including reviews and educational videos, on the group's youtube page.

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