Hemp has been a very important plant for humans for many centuries. It is considered one of the oldest industries going back to the beginnings of pottery more than 10,000 years ago. In the book “The Columbia History of the World” it is said that the oldest existing artifact of the human industry is a piece of hemp fabric that is around 8,000 years old found in ancient Mesopotamia (modern Iran and Iraq). It was used extensively in the ancient world as a source of food, clothing, rope, and even medicine. Hemp usage followed into the modern age and was used as an important part of the Great Age of Sail. The word canvas actually comes from the word cannabis as it was used to make the sails for the tall ships that made world exploration possible. Even our founding fathers like Washington and Jefferson had a history of growing hemp and early colonists were made to grow hemp by law in the Colonial Era and the Early Republic. As you can see hemp has been an extremely important plant for much of human history. So you might be thinking what went wrong?
Hemp Becomes Illegal
Due to growing concerns over some more illicit uses of the Cannabis Sativa plant and competition with other industries, mainly the timber industry, the federal government moved to heavily tax hemp with the Marihuana Tax Act of 1937. This made it difficult for farmers to grow hemp and turn a profit on it, however it did not make hemp illegal. The hemp industry was revived during WWII when foreign hemp shipments were cut off by the Japanese occupation of the Philippines. This led the US government to subsidize the growth of hemp in the States for the war effort. However, after WWII the industry was quietly closed down and the hemp industry faded away once again. Then in 1970 the federal government passed the Controlled Substances Act and placed Cannabis Sativa on the list. This law made any part of the hemp plant illegal regardless of THC content which effectively killed the entire industry in one fell swoop.
A New Revolution
In the early 2000s movement started to pick up within the hemp and cannabis cultures due to it being an effective treatment for a wide variety of ailments. This allowed hemp to be viewed not as a dangerous drug, but as the helpful plant that it once was. Many hemp-derived products found their way back onto the shelves of stores, albeit still heavily stigmatized and associated with hippies. In 2018 the federal government recognized that hemp is a unique variety of the Cannabis Sativa plant and removed it from the list of banned drugs. This was called the 2018 Farm Bill and led to an explosion in the hemp industry. It made all parts of the hemp plant legal as long as they were under 0.3% THC. Overnight the hemp industry was back up and running which led to an influx of hemp and CBD-infused products flooding the market.
Hemp Is Legal!
Hooray! Hemp is now legal federally! Hemp for all! But wait, not so fast. There are some requirements for hemp to meet the legal regulations. Additionally, not every state follows the federal guidelines. Some states have it fully legal, some heavily regulated, and some outright ban as before. This legal patchwork throughout the states can be a nightmare for many hemp companies and end-users alike. Here are some key concepts to keep in mind though when it comes to legality in your immediate area.
Delta-9 THC Versus Total THC
The 2018 Farm Bill specifies “hemp” as a variety of Cannabis Sativa “with a delta-9 tetrahydrocannabinol [(“THC”)] concentration of not more than 0.3 percent on a dry weight basis.” Some states have interpreted this specification literally and to only mean the delta-9 THC content in hemp is used in determining compliance with federal and state regulations. However, some other states have interpreted the federal law to mean that the acidic cannabinoid known as THCA that contains THC must then be added to the concentration to ensure that the total THC concentration does not exceed the 0.3% outlined in the Farm Bill.
What is Total THC?
Total THC is a legal argument that for Cannabis Sativa to meet the requirements of hemp as defined in the 2018 Farm Bill it must include both THC and THCA in the THC concentration. If when added together these are above the specified 0.3% THC content, then it is considered unlawful hemp. After adding these two concentrations together the levels are below the federal limits, then it is considered legal.
The Difference Between THCA and THC
THCA and THC are compounds that are commonly found within the cannabis plant. Tetrahydrocannabinolic acid better known as THCA is an acidic cannabinoid while Tetrahydrocannabinol or THC is a neutral cannabinoid. THC is well known for producing the euphoric effect often associated with the cannabis plant. Both of these compounds are present in different percentages in the original plant. However, when THCA is exposed to heat or light it converts into THC. The conversion process occurs in nature over time, but it can also be significantly sped up and enhanced through a special process called decarboxylation.
2018 Farm Bill and State Testing
The 2018 Farm Bill may have legalized the cultivation, production, and sale of hemp and the CBD products produced from hemp on a federal level. However, it was then left up to the states as to how they would manage, control, and test the hemp to ensure that it conforms to federal regulations. The Farm Bill states, “that States and Native American Tribes that wish to hold primary regulatory authority over the production of hemp within their borders must submit a plan that includes a procedure for testing, using post decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe.” This essentially means that States and Tribal Lands have the regulatory authority over hemp production as long as a plan is put forth and approved by the US Department of Agriculture. That being said, each state has varying laws in regards to the cultivation, production, sale, and possession of hemp and CBD infused products. While most states allow hemp and CBD-infused products in one form or another some have an outright ban on hemp and treat it as any other drug. What follows is a state by state breakdown of how each state views hemp and hemp products. Keep in mind that laws are constantly changing and can vary from municipality to municipality. That is why it is always best to check with local regulations before buying or using CBD products.
CBD Hemp Legality State By State
Here is a list of exactly how each state classifies hemp and the laws concerning such. These are taken directly from the statutes where possible. For the most current information, visit your state’s Department of Agriculture website or give them a call.
States That Are Clear On Less Than 0.3% Delta-9 THC
Alabama – §2-8-381: “All parts and varieties of the plant Cannabis sativa, cultivated or possessed by a licensed grower, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Arizona – §R3-4-1012-3: “All licensees are subject to the collection of a representative sample of any Cannabis plant, hemp crop or harvested hemp in possession of the licensee or licensee’s agent to determine the total concentration of Delta-9 THC as reported by a certified laboratory to ensure compliance with this article and any state or federal law, rule or order regulating Cannabis as an agricultural commodity.”
California – §81006-5: “a percentage of content of THC that is equal to or less than three-tenths of one percent (.3%).”
Colorado – §SB184: “Industrial hemp means a plant of the genus Cannabis and any part of the plant, whether growing or not, containing a delta-9 tetrahydrocannabinol (THC) concentration of no more than three-tenths of one percent (0.3%) on a dry weight basis.”
Florida – §581.217: “that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.”
Hawaii – §141-38: “Growing industrial hemp that when tested is shown to have a delta-9 tetrahydrocannabinol concentration greater than 0.3 percent on a dry weight basis or a tetrahydrocannabinol concentration allowed by federal law, whichever is greater;”
Illinois – 505 ILCS 89 §1200.10: “Industrial hemp” means the plant Cannabis sativa L. and any part of that plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis that has been cultivated under a license issued under this Act or is otherwise lawfully present in this State and includes an intermediate or finished product made or derived from industrial hemp.”
Indiana – §15-15-13-7: “A license to grow hemp is required, and hemp must test below 0.3% THC. In the absence of a license, any cannabis production regardless of THC level is considered marijuana. Marijuana production is still not legal in Indiana.”
Kansas – KSA §2-3901: “Industrial hemp” means all parts and varieties of the plant Cannabis Sativa L, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.”
Kentucky – KRS § 260.858(3): “Industrial hemp” has the same meaning as in 7 U.S.C. sec. 5940 as it currently exists or as it may be subsequently amended;”
Louisiana – LA R.S. §3:1461-1472: “Industrial hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds hereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more 0.3 percent on a dry weight basis.”
Maine – Title 7 MRS 406-A §2231: “Any variety of Cannabis sativa L. with a delta-9-tetrahydrocannabinol (THC) concentration that does not exceed 0.3% on a dry weight basis.”
Maryland – M HB §14-101: “In this subtitle, “industrial hemp” means the plant Cannabis Sativa L. and any part of such plant, whether growing or not, with a delta–9–tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis.”
Mississippi – MS HB §1547, Agricultural Act of 2014 §7606: “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% on a dry weight basis.”
Missouri – SB §133, HB §2034: “This bill exempts industrial hemp, which is defined as Cannabis sativa L. containing no greater than 0.3% THC, from the definition of marijuana and the list of controlled substances.”
Montana – MCA §80-18-111: “Total Delta-9 THC % test results of mature flowers from mother plants.”
Nebraska – LB §2-5701: “plants grown would be required to be submitted for testing to determine whether they contain less than 0.3 percent THC.”
New Jersey – FS §1302: “By definition, industrial hemp is low (less than 0.3%) in tetrahydrocannabinol (THC)”
New Mexico – Title 21 Chap. 20 Part 3 §22.214.171.124: “viable plants and plant material in excess of three-tenths percent and less than five percent THC.”
New York – §A 9310: “and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
North Carolina – Farm Act 2019: “use of varieties with less than 0.3 percent THC.”
North Dakota – ND Cent. Code §4-41-01: “and that the variety is known to have delta-9 THC levels below 0.3%.”
Ohio – SB §57: “hemp must contain less than .3% THC.”
Oklahoma – §3-401, 3-410: “By law, industrial hemp must have less than 0.3% THC.”
Pennsylvania – Industrial Hemp Research Act P.L. 822, No. 92: “ Industrial hemp is cultivated for fiber, seed, and other purposes, and federal and state law requires that the concentration of THC must be less than 0.3% in industrial hemp.”
South Carolina – Hemp Farming Act / H. §3449: “The law defines industrial hemp as cannabis that has no more than 0.3 percent THC.”
Tennessee – §0080-06-28: “THC means delta-9 tetrahydrocannabinol.”
Texas – HB §1325: “with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Utah – HB §3001: “legal possession of hemp extract, or CBD oil, containing less than .3% tetrahydrocannabinol”
Vermont – 6 V.S.A. §34: “Industrial hemp or hemp is the Cannabis sativa L. plant including all parts of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”
Virginia – VA Code §3.2.4115: “shall have a THC concentration not more than 0.3 percent on a dry weight basis.”
Washington State – §69.50.326: “CBD use is limited to edibles, oils, tinctures, and other products derived from marijuana. THC levels in all CBD products cannot exceed 0.3% on a dry weight basis.”
West Virginia – SB §447: “recognizing industrial hemp having no more than 1 percent THC as an “agricultural crop.”
Wisconsin – DATCP Industrial Hemp Research Pilot Program: “If the THC concentration rises above the legal limit of 0.3 percent dry weight, the crop must be destroyed.”
Wyoming – WY Hemp Regulatory Program Proposal to USDA (6/2019 – pending): “All license holders are subject to inspection and sampling to verify all parts of the hemp plant does not exceed the allowable three-tenths of one percent (0.300%) THC.”
States That Are Clear On Less Than 0.3% Total THC
Arkansas – State Department of Agriculture Memo (May 2019): “The Arkansas Industrial Hemp Program recognizes delta-9 THC as being THC + 0.877*THCA.”
Minnesota – MN HF §1437: “The final regulatory determination will be based on the total potential THC post-decarboxylation, which is equal to delta-9 THC + (THCA x 0.877) if the sample is analyzed via HPLC methodology.”
Oregon – Ch 603 §603-048-0010: “the molar sum of THC and THCA [tetrahydrocannabinolic acid].”
Rhode Island – HB §8232: “Hemp” means the plant of the genus cannabis and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration that does not exceed three-tenths percent (0.3%) on a dry weight basis of any part of the plant cannabis or per volume or weight of marijuana product or the combined percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant cannabis regardless of the moisture content.”
States That Are Not Clear On Less Than 0.3% Delta-9 THC or Total THC
Connecticut – Public Act §183: “Voluntary or ordered destruction of Hemp that is above 0.3% THC is at the licensee’s expense.”
Georgia – HB§213: “whether growing or not, with the federally defined THC concentration no more than 0.3 percent”
Iowa – Iowa Hemp Act: “Hemp plants (Cannabis spp.) have THC levels of 0.3 percent or less. Plants with THC levels above 0.3 percent are still considered controlled substances in the state of Iowa and must be destroyed.”
Massachusetts – M.G.L.C. 128 §116-123: “Certification of Industrial Hemp through regulatory testing to ensure THC levels < 0.3%.”
Michigan – MCL §286.854: “The defining characteristic between hemp and marijuana is the chemical compound contained within each plant. Both can produce high amounts of Cannabidiol (CBD), a non-intoxicating chemical compound; however, THC is produced at very different levels. While hemp can contain no more than 0.3% THC by dry weight, marijuana can contain up to 30% THC. Chemical analysis must be performed to ascertain THC levels.”
Nebraska – LB §2-5701: “plants grown would be required to be submitted for testing to determine whether they contain less than 0.3 percent THC.”
Nevada – §7606: “The plant Cannabis sativa L with a THC content of not more than 0.3 percent on a dry weight basis.”
States That Mandate Hemp With Any THC Is Illegal or Pending Legislation
Idaho – HB §300: “The Idaho Attorney General considers hemp extracts with cannabidiol (CBD) to be a controlled substance unless it is derived from excluded parts of the hemp plant AND contains no tetrahydrocannabinol (THC).”
New Hampshire – HB §459: Illegal, however legislation is pending.
South Dakota: The proposed statute did not pass the state senate 5-4 with future legislation pending.