The current legal status of marijuana is enough to put marijuana users and businesses in a constant state of confusion. Complex and often contradictory laws can be difficult for patients and businesses to understand and stay on top of. One area of confusion that has been coming up with increasing frequency involves the sale of cannabidiol (or “CBD”) products. For the purposes of this article I differentiate between “marijuana” plants, which are grown to produce marijuana, and “industrial hemp plants” which are grown to produce hemp products.
Although there may be confusion, one thing is clear, while certain states allow for the use of marijuana for medical or recreational purposes, marijuana remains illegal pursuant to federal law. It does not matter if you have a recommendation from your doctor; if you use, possess, produce or distribute marijuana you are breaking federal law.
Hemp-Derived CBD vs. Marijuana-Derived CBD
Industrial hemp is produced from the same basic plant as marijuana. Consequently, the federal prohibition of marijuana also prohibits the cultivation of industrial hemp. Nevertheless, it is completely legal under federal law to import several products produced from industrial hemp that is grown outside of the United States, so long as the products are derived from the seeds and stalk of the hemp plant.
Some of those products are very well known such as rope, clothing, lotions, etc. People are often surprised to learn that it is perfectly legal to import many CBD products produced from industrial hemp grown outside the United States. Anybody can legally purchase those products, you do not have to be a marijuana patient under state law and you do not have to go to a dispensary to purchase those products so long as the THC levels are sufficiently low (federal regulations require that industrial hemp products be less than 0.3% THC by dry weight). These products are generally treated as dietary supplements and do not undergo the strict FDA screening required of mainstream medications.
Ironically, Nevada Medical Marijuana Establishments (MMEs) should be aware that while many CBD products may be federally legal to import and sell, it may actually be illegal under Nevada state law for the MME to sell those products. Quite simply, Nevada is a highly regulated market and Nevada’s strict regulations may actually be higher than the federal regulations in some areas, particularly with regard to product testing. Therefore, MMEs should exercise extreme caution before attempting to sell any CBD products to ensure compliance with Nevada’s strict state and local regulations.
So the $64,000 question is: are CBD products produced from marijuana plants treated differently than those produced from imported hemp products?
CBD products produced in the United States from marijuana plants (and theoretically industrial hemp plants) grown in the U.S. remain illegal under federal law in practically all circumstances. Nevertheless, in spite of federal prohibition the laws of certain states and jurisdictions allow for the medical or recreational use of marijuana, including the production and use of CBD products produced from U.S. cultivated marijuana plants.
In Nevada, marijuana patients may legally purchase these types of CBD products so long as they have a valid patient card and the products are produced and sold by Nevada licensed MMEs. Nevada MMEs wishing to sell CBD products should familiarize themselves with the relevant legal regulations. State produced CBD products will be treated as any other marijuana infused product and will be subject to all the same strict state regulations.
Marijuana laws are complex and ever-changing. Both MMEs and patients should consult with a Nevada licensed attorney who is familiar with Nevada’s complex regulations before attempting to buy, sell, or produce CBD products.