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Legal status of hemp and CBD

The CBD found in oils and other products is usually derived from the fiber types of cannabis (hemp), because it is naturally higher in CBD content than the pharmaceutical types (marijuana). Although cannabis cultivation is permitted in many countries around the world, this is usually governed by strict regulations. After being banned for decades, cannabis has only recently been replanted in the United States, and is still poised for full industrial production.

In the European Union (EU), cultivation of some cannabis varieties is granted provided that they are registered in the European Union Common Catalog of Agricultural Plant Species and the THC content does not exceed 0.2% of the dried flowers of the plant. In Canada, hemp is allowed to contain 0.3% THC, while Switzerland allows up to 1% THC. In most countries, arable seeds can only be purchased from certified seed companies, in order to ensure that the correct cannabis variety is actually being grown. In addition, hemp may usually be grown only in outdoor agricultural fields, while indoor cultivation is usually prohibited. In some countries (for example, the Netherlands), the cultivation of hemp is permitted only for the purpose of producing fiber or seeds. As a result, the process of harvesting hemp fibers for their CBD is a violation of drug laws. New cannabis varieties (eg developed to produce higher CBD content) are not (yet) registered as certified cannabis varieties and therefore cannot be freely grown, while the formal registration process takes several years to complete.

The legal status of CBD in the USA is very complex, because many individual states have introduced their own medical or even recreational cannabis laws, while the federal government does not accept any consumption of cannabis. In the USA, but also in Germany and the UK, CBD is technically classified as a new drug, requiring manufacturers to meet more stringent standards for safety, quality, and efficacy. Thus the statement that CBD is simply “legal in all 50 US states” is misleading, if not incorrect. It should be noted that even in places where CBD is technically illegal, products may still be readily available because authorities are lax on law enforcement, or discussions are still ongoing about how to deal with the influx of CBD. In short, whether CBD is legal depends on how it is made, what is in the end product, and where you are located.

An important issue in the discussion about hemp-derived oils: How much THC is a legal CBD product allowed to contain so it is not considered a drug? Authorities sometimes choose to approach these regulations in a pragmatic manner, recognizing that laws designed to control marijuana use may not be fully applicable to cannabis. For example, in the Netherlands, a maximum of 0.05% THC is allowed in CBD products, although any detectable trace of THC is illegal according to Dutch drug laws. This approach is based on the fact that even hemp varieties produce a small amount of THC, so naturally derived CBD extracts will carry some THC in the final products.

The fact that the maximum CBD content in the oil is restricted by THC in the herbal substance used makes adding an additional amount of purified CBD to increase the ratio advertised on the label attractive. Unfortunately, the new EU Food Catalog states that “extracts of the Cannabis sativa L. plant where CBD levels are higher than CBD levels in the plant source are considered novel in food. This means that enriching natural hemp extract with pure (often synthetic) CBD makes it a new food product, and as a result it must undergo a significant safety evaluation before it can be marketed. However, it is still not clear in many EU countries whether extracts without added CBD also fall under this regime.

Due to the many restrictions and conditions, it can be difficult to establish a fully legal and viable pipeline for the production and sale of CBD oil. As different countries allow different activities regarding cannabis cultivation, processing, extraction etc., entrepreneurs often set up production lines spanning across multiple countries, where hemp is grown in one country, while extraction is done in another laboratory test in a third country, and sales take place in another country. Obviously, this makes it difficult to determine exactly where the CBD product is coming from, who is responsible for its final quality, and what standards have been followed. For this reason, comprehensive analytical testing of finished products by certified third-party laboratories is an essential tool to ensure the safety and composition of CBD oils.

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