The Legality of CBD: Caveat Emptor

Chances are you’ve heard of CBD products. Many cities around North Carolina have stores specializing in CBD products, and it’s widely available online and in ‘vape’ shops. It’s marketed for its health benefits and is touted as a safe and legal (if largely unregulated) treatment for a variety of conditions, from depression to inflammation to cancer and acne. I was recently asked to look at the law surrounding CBD products, and this post summarizes what I found.

What is CBD?

CBD is the common name for the compound cannabidiol, one of over 100 cannabinoid compounds found in the cannabis plant. While “cannabis” is often used in common parlance as another word for marijuana, marijuana and hemp are actually different varieties of the Cannabis sativa species—although both can be used to manufacture CBD. Among other botanical differences, hemp has a high concentration of CBD and low concentrations of THC (delta-9 tetrahydrocannabinol, the more renowned cannabinoid and the primary psychoactive ingredient in marijuana). CBD itself is not considered an impairing substance and at most has trace amounts of THC . . . although we’ll come back to that point.

For many years, researchers apparently believed the compound was chemically inert. More recently, it has been shown that CDB is an effective treatment for certain types of childhood seizure disorders, whatever other potential benefits it might have. CDB is available in a variety of forms, and can be eaten, drunk, dissolved through the skin or under the tongue, or inhaled. Back in June of this year, the Food and Drug Administration approved the first prescription CDB-based medicine, Epidiolex, an oral solution. Note, one thing CBD is not is synthetic marijuana—those compounds, sometimes marketed as K2 or Spice, are designed to mimic the effects of marijuana but don’t actually contain any marijuana. Synthetic marijuana is a Schedule I controlled substance in NC and is known to cause psychosis and other major health problems.

So is it legally safe to purchase and use CBD products in NC?

That was in essence the question I received—is this a legal product in North Carolina? The answer is yes, at least sometimes. The state definition of marijuana in G.S. 90-87(16) excludes “industrial hemp as defined in G.S. 106-568.51, when the industrial hemp is produced and used in compliance with the rules issued by the North Carolina Industrial Hemp Commission”. G.S. 106-568.51(7) defines “industrial hemp” as all parts of the cannabis plant grown by a licensed grower that has less than 0.3% THC content. It appears that a product meeting those requirements is legal under state law—it is not marijuana by definition and not controlled by any other state law of which I’m aware.

Note, Article 5G of Chapter 90 of the General Statutes of North Carolina carves out another exception for the use of hemp extracts to treat intractable epilepsy in certain circumstances; G.S. 90-94.1 allows products for this class of patients to contain up to 0.9% THC. These more specific laws automatically terminate on July 1, 2021, and apply only to a very narrow set of people. For everyone else, the limit on legal hemp products is 0.3% THC.

So, easy right?

What about the Feds?

Despite the state rules, confusion abounds about the federal treatment of CBD. The federal definition of marijuana found in the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et. seq., mirrors the state definition of marijuana but without the exception for hemp. “Marihuana” (as it is called in the U.S. Code) remains a Schedule I controlled substance under federal law. Schedule I controlled substances are considered to have no known medicinal value and a high potential for abuse.

In 2014, however, the U.S. Congress passed a Farm Bill that authorized industrial hemp programs and modified the federal definition of marijuana to exclude hemp. 7 U.S.C. § 5940 provides that any part of the Cannabis sativa plant with a THC concentration of less than 0.3% is deemed industrial hemp and not marijuana, notwithstanding the definition under the CSA.

The Drug Enforcement Agency (“DEA”) also recently reclassified some CBD products as Schedule V controlled substances, apparently to allow Epidiolex (mentioned above) onto the market. Under that directive, a product containing CBD with less than 0.1% THC content would be a schedule V controlled substance, instead of schedule I. The directive is narrow and directed specifically at Epidiolex; all other CBD products are presumably still treated as a schedule I substance.

An earlier directive adds yet another wrinkle. Depending on which part of the plant that is used to make CBD, it may not be a controlled substance at all. The federal definition of marijuana (like the state definition) excludes the mature stalks of the plant. According to the DEA, “[t]he mere presence of cannabinoids is not itself dispositive as to whether a substance is within the scope of the CSA; the dispositive question is whether the substance falls within the CSA definition of marijuana.” In other words, that definition looks to which part of the plant is used to create the end product, not the presence of THC or any other specific cannabinoid. If the CBD isn’t made from the prohibited parts of the plant, it’s arguably not a controlled substance under federal law, regardless of THC content. How that distinction is enforced is far from clear—how is law enforcement supposed to distinguish between products sourced from lawful hemp versus marijuana? You could test for THC, which might show the product exceeds the THC level to qualify as hemp under state or federal law, but that still wouldn’t tell you which part of the plant it came from, which matters under the state and federal definitions.

As far as I can tell, the takeaway is that federal law allows the use and possession of CBD at least in those three situations: where it’s produced from industrial hemp; where it’s produced from parts of the cannabis plant that don’t count as marijuana; and where it’s lawfully prescribed.

So What’s the Problem?

Where should we begin? People have been arrested for possessing and selling the product in and out of the state, and sellers in NC have had shipments seized by federal authorities in transit. Some law enforcement agencies have taken a proactive approach to determining the legality of CBD products by testing them off store shelves. Proving to law enforcement that any given CBD product is legal could be challenging. Further, because the product is not FDA approved or subject to standardized quality controls (at least in terms of the over-the-counter commonly available versions), a retail buyer does not necessarily have an easy way to determine how the CBD was made (Is it really made from industrial hemp? From NC-licensed industrial hemp growers? Is it from the mature stalks of regular marijuana, or from other, illegal parts of the plant?), or what the exact chemical composition of the substance truly is (is it really CBD? In the correct dosage it claims to contain? Does it have less than 0.3% THC? Does it contain any measurable THC?).

Aside from issues with the source, a well-intentioned CBD user might get a batch that happens to contain a higher-than-advertised THC level. This could not only result in unintentional impairment, but also a positive drug screen in the event the user is tested. Conversely, a marijuana user, confronted with a positive drug screen, might claim they were only using lawful CBD products. I haven’t been able to find hard and fast information on how likely it is that a product with less than 0.3% THC would be detectable in most drug screens, but there’s at least some evidence that large doses of CBD can trigger a positive result for THC, and different drug screens have different levels of sensitivity. Many CBD products from marijuana-legal states contain THC and other cannabinoids in much higher concentrations. So, in addition to the risk that a CBD product inadvertently contains too much THC, there’s also the risk that what is billed as hemp-sourced CBD product is really just a marijuana product with THC levels above the 0.3% mark. While many companies selling CBD assure potential customers that their products comply with the law and won’t typically cause a positive drug screen result (and I imagine many do strive to comply with the law and are concerned about detectable THC levels in their products), these are not insignificant risks for many workers—health care, law enforcement, and the military come to mind, among other fields. It’s anyone’s guess how high these risks really are, but the consequences of a positive drug screen (or an arrest) can obviously be grave. Until there is more uniform regulation (and I’d be willing to bet that we will see legislation on this topic one way or the other soon, at either the state or federal level, or both), my advice to would-be users of CBD products is summed up in the Latin subtitle to this post: Buyer beware.

Readers, do you have experience with CBD products? How is law enforcement treating them in your area? Have you seen a criminal case brought for CBD? Post a comment and share your stories.


48 thoughts on “The Legality of CBD: Caveat Emptor”

  1. Idaho cities are licensing CBD shops in Idaho.
    Washington State gives Northern Idahoans access to marijuana and Oregon gives Boise and southern Idaho access to marijuana. Licensing CBD that is based on hemp creates a legal market for CBD that replaces the need to go to WA or OR for illegal higher THC containing CBD oil.
    TBH, despite me being a NC and Idaho attorney, this news article does a better job explaining CBD regulation than I could. I’m a prosecutor, but I mostly do child support enforcment. I do handle some criminal cases, but I have never seen a CBD case come through the office. It would be the absolute lowest enforcement priority.
    High CBD (but with THC) WA or OR CBD oil would be taken seriously, but the equivalent of a 90-96 would probably be the end solution.
    I doubt a defendant would see a trafficking charge for the whole weight of CBD oil either unlike what NC does with pills and trafficking opium, State v. McCracken 157 N.C. App. 524 (N.C. Ct. App. 2003).

  2. Well written and informative. I live in NC and I use full spectrum CBD oil every day for inflammation in my back and arm. It seems to help a great deal but there are many factors and triggers, so finding out the exact % of how much it helps can be a little mirky. I also notice that it helps a great deal with stress, anxiety and sleeplessness. Based on my research, it can help with a large number of other health issues and problems as well. New research suggests it can mitigate the effects of dementia and/or Alzheimers. As silly as it is to have a non-psychoactive, plant-derived substance listed as a Schedule I on the federal level, it is very helpful to learn more about it, and some of the potential legal risks people face by using it. Thanks for the info, keep up the good work.

    • I also live in NC and was working for the Cleveland County school system. I take CDB gummy bears that are at the legal limit of 0.3% for lower back and hip pain, as well as headaches and sleeplessness. I failed a drug test and was given the choice to be dismissed or resign from my position…

        • You can still fail a drug test even if the CBD has the legal limit or less. Everyone metabolizes THCC differently and while some my not test positive others will. I am a perfect example and I tested myself in my lab. Three of us were taking the same CBD product that was legal in SC. Two failed while the third did not.

          • Yes this is true. I work for a new company out of Wilmington. Our CBD Full Spectrum was tested to be around .1% and someone still tested positive on a home drug test. I am a huge advocate to CBD but will ALWAYS tell everyone to ask for the labs associated with the product they are using. At Green Compass Global, I have all the labs for each batch we have. They are matched with the number on our bottles and share that with everyone. I work for a school in NC also and use CBD but I use our Isolate oil which is extremely refined and only contains CBD and CBDV, NO THC.

  3. One of the issues right now is that the field test kits currently available to law enforcement agencies have such low thresholds, that they will test positive for legal hemp (i.e., with a THC level at .3% or below) as well as illegal marijuana (with a much higher THC level). The Guilford County Sheriff’s Office has identified a field test kit (presently used by some law enforcement agencies in Europe) that is capable of distinguishing between the low levels of THC found in legal hemp products and the higher THC levels found in illegal marijuana. These field test kits will show one color (reddish pink) for the former and another color (blue) for the latter.

    We have obtained a large sample of these test kits from the manufacturer of these test kits and have just entered into an agreement with a hemp retailer, two Universities located in North Carolina, and one independent private laboratory to conduct a validation study on these test kits. We hope to have the study completed before the end of January or February 2019. If these validation studies demonstrate that these field test kits are reliable, we will share this information with law enforcement agencies throughout the State. This type of field testing will serve three purposes: (1) protect innocent users of lawful hemp from unnecessary seizure and/or arrest; (2) enhance the ability of law enforcement agencies to successfully identify and arrest users, sellers and distributors of illegal marijuana; and (3) further enable the expansion of the lawful hemp industry in North Carolina as early indicators show this industry could be a significant contributor to our State’s economy and an important financial benefit to our citizens.

    Jim Secor, Deputy County Attorney / Sheriff’s Attorney, Guilford County Sheriff’s Office

    • I am very interested in knowing what the results are from the more refined test kits. I am currently fighting for my job after after testing positive for THC. I have been using legal CBD oil from hemp since 2017 and never tested positive before. I do not use marijuana in any form. Even if it was legal in my state I have no desire to use it or be high in any way. I started using Charlotte’s Web then Lazarus Naturals so I could stop using prescription Cymbalta.

      • I take hydrocodone for pain and I am subject to random drug tests. If I fail, I m dimissed from the clinic. I cannot risk that since CBD is not regulated. I may not be getting enough to manage the pain. Or like you, fail a drug test. I’ve ordered CBD through the mail and it did not help my chronic pain. No regulation. But it did help with my anxiety.

    • Thank you so much for your effort to curb the arrests of North Carolina citizens looking for a more natural way to treat their ailments and unessecary closures of places selling these oils!

    • Actually, a test kit like that doesn’t differentiate between “delta-9 thc” and other forms of thc such as “thc-a” which is completely legal as well. The only real way is to get a real test which breaks down all cannabinoids… in addition- all testing differs from lab to lab also… can’t possibly be a field tester capable of accuracy when deciding somebody’s freedom.

        • THC-A or tetrahydracannabinolic acid is the naturally occurring acidic precursor to THC delta9 and will change (decarboxylate) when heated to 230 degrees for about 30 minutes. Because THC-A is not psychoactive but can be when easily changed, the law states when testing for THC delta9 levels all THC must be considered so samples must be decarboxylated when determining levels.

          Short answer may be that unless you have a fairly sophisticated lab THC-A is not available unless sold as part of a whole-plant extract from plants that were tested by the state and found to be compliant.

    • It’s extremely unfortunate for those who have already lost jobs, had their lives turned upside down & suffered the consequences of these inconclusive tests… To be fair, those with convictions as a result of these tests, with no previous criminal history, sIt’s extremely unfortunate for those who have already lost jobs, had their lives turned upside down & suffered the consequences of these inconclusive tests… To be fair, those with convictions as a result of these tests, with no previous criminal history, should have their cases overturned… Just a thought..hould have their cases overturned… Just a thought..

  4. This situation is a regulatory and enforcement nightmare. It is a can of worms that should have never been opened, but nonetheless it is here.

    In order for a CBD product to be legal in NC, it must comply with N.C. G.S. 90-94.1 (child seizure treatment) OR it must be less than .3% THC and produced through the NC industrial hemp program. The NC Industrial Hemp Commission is required to assist law enforcement in identifying lawful and legitimate production within the program. If a CBD product measures less than .3% THC, but it didn’t come from the NC industrial hemp program, it is illegal. If the business does not have some type of certification or proof that the product came from the NC industrial hemp program then it is illegal.

    In regards to the mature stalk exception, I find that to be rather dubious. While in theory this may be a legal exception, I cannot find any scientific evidence to support any claim that there is a medicinal benefit to CBD extracted from the mature stalks. It is my understanding that it is not currently practical to extract CBD from mature stalks due to it containing very little CBD and the process used leaves behinds chemicals that is unfit for human consumption. I believe only trace amounts (parts per million) of CBD are available when extracting from mature stalks and thus any product claiming to be produced from mature stalks is likely fraudulent.

    Nonetheless, the law needs to be clarified and the Department of Agriculture needs to provide a regulatory scheme that will ensure a robust system of enforcement. The continued inaction in regards to enforcement of this mess only allows unscrupulous businesses to continue to profit at the expense of our nation’s health and well-being. You would be an absolute fool to put one of these products in your body.

    • Cite your sources Brett. And they need to be peer-reviewed scientific sources that overwhelmingly dispute the currently accepted evidence of CBD’s medical benefits.

      • I agree! I use a CBD everyday. I know how it has made me feel and many of my family members. Because of TESTIMONIES, I have began to sell it. I did my research and started with a company that produces organic, natural product that follows the very strict guidelines. We have labs for ALL of our product and every batch we make. The farm is 45 mins from my house and we are based out of Wilmington. I think it is very hard to speak on something that you have not tried nor research well enough to be informed. Green Compass Global is an outstanding CBD provider, and while most are, some could give it a bad name just like anything in any industry.

  5. Mr. Phil Dixon, I would like to speak to you about expanding the education to the public and UNC students. My name is Alexander Kraeger and I am going to be working at the new Hemp Store opening on franklin street in chapel Hill. I am also a member of NORML of the triad and our team is looking for opportunities to reach UNC students to share the facts about Cannabis (both Industrial Hemp and Marijuana. Please contact me @

  6. Marijuana Prohibition has been a regulatory and enforcement nightmare ever since NCGS 90-95(d)(4) went on the books. Anybody remember what year the legislature passed this law, which Jimmy Buffett has called North Carolina’s “stupidest”?

  7. Also the NC Board of Pharmacy issued a link to the FDA statement by Scott Gottlieb from Dec. 20th. Here’s the gist and link below.

    ” Additionally, it’s unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements. Under the FD&C Act, it’s illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements. This is a requirement that we apply across the board to food products that contain substances that are active ingredients in any drug.”

    • Assuming a retailer has obtained a legal hemp product, I’m not aware of any restrictions on who may sell it, any more than there would be for any other lawfully produced hemp product. The FDA announcement above indicates there are restrictions on how the product is marketed and labeled, but I haven’t seen anything else about restrictions on sale. If readers have more information on the point, please share.

      • I work for the state as a NC teacher and am an independent distributor. It is very lucrative and has helped SO many people who have actually given it a chance. I swear by it. But, as long as the company has done their due diligence following the strict regulations, anyone can sell the product.

  8. This was written before the Federal Farm Bill was passed in December. Since the passage of this bill can I distribute and sell CBD oil to retailers legally in NC that has the proper amount of THC in it, less than .3%. This CBD oil is grown from Colorado crops, processed in Colorado and has the proper testing and product analysis to be legal CBD oil. This is a family venture that is based in Virginia and is being distributed in Virginia, Colorado, Oregon and Iowa. I just want to be legal before I would consider distribution into NC. Thanks in advance.

  9. It staggers the sound mind to be in 2019 and still have hemp/cannabis being the focus of prosecutions and controversy at all. If the average citizen knew WHY hemp was made illegal back in 1938 they would be outraged that any person would be subject to criminal penalties for it’s use or possession. It is beyond debate, a well known and historical fact, that there was no medical, social, historical,scientific or public safety reason to ever criminalize this plant to begin with. The Bureau of Narcotics, headed by a bureaucrat named Harry Anslinger, had very little of a problem with drugs and needed a villain in order to fund and expand their domain, thus the ” reefer madness ” lies and nonsense the public were exposed to. Add to that the corporate fear of hemp by pulp paper producers, notably Randolph Hearst of newspaper fame who had vast fortunes invested in trees used as material for newspaper publishing. A machine had been patented that would allow for mass production of hemp fiber, much more efficient and lower cost than tree growth, which would render Hearst’s investments of little value. Also, petrochemical fabrics and products such as Nylon and Rayon, etc. were just coming into the market and would be threatened by hemp as a superior product. Anslinger was married to a close relative of the DuPont family, who owned the petro patents and did not want competition. It was a complete and obvious scam to not only enrich the corporate pals contributing to the politicians coffers but grow a Federal agency that was in desperate need of a fall guy for it’s expansion plans.

    The only opposition to the insider scheme was the American Medical Association, whose counsel appeared before the Senate to denounce the outrageous lies being offered by the government in order to make hemp illegal. His truthful analysis was not appreciated by the bought off Senators and he was ignored. The fix was in. The scammers even had to come up with a new name for the plant; had they had the nerve to let people know that they were banning the well known , useful and harmless hemp plant that everyone knew well and that grew everywhere with absolutely no impact on society they would have been laughed at and denounced , so they used a Mexican slang term ” marijuana ” and claimed that it was a new plant heretofore unknown in the US that mad people go mad. Anslinger went so far as to claim that the use of hemp made ” …white women seek sexual relations with Negroes, jazz musicians and any others ” and that murder and madness were common among users. Of course there was zero evidence of any harms whatsoever and the whole thing was a scam benefiting the few while imposing great harms on generations of Americans. How many people have spent years, decades at times behind bars as a result of their skullduggery and deceptive lies?

    To think that in this day and age we still have the tattered remnants of this horrible injustice continuing to impact lives is sickening. In order to fund any war you must first find an enemy and frighten the populace with the dangers of ignoring the peril, and hemp was the convenient victim of the political and corporate dishonesty that without shame perpetrated this historical abuse of the truth. There is no evidence whatsoever, either direct or anecdotal, that hemp caused any harms at all; it was in the way of powerful financial and bureaucratic interests that were more than happy to demonize a harmless plant in order to line the pockets of the Anslingers and DuPonts . A law based on lies, obvious and undeniable cannot be respected and should have been done away with a half century ago, but still we have police desperately sniffing around even the rotting corpse of the failed drug war to glean benefit from the continued outrage that is cannabis prohibition.

    There is no defense, no justification, no evidence and no reason to pretend that there were legitimate reasons to ban hemp in the first place and the opponents of legalization ( normalization ) have no shame about pretending against all true facts that there is a need for propping up the disgusting and irrational criminal laws against hemp/cannabis. Bring up the facts I recited above and watch the talking heads of prohibition run away rather than face the truth. If they had any shame they would be embarrassed, but only shameless interests have the nerve to continue the wretched lies that have caused so much grief for so long. It insults the moral mind to be asked to believe the still promulgated nonsense that anti-cannabis special interests cling to in order to wring out the last dollar from the rotting corpse of the issue.

  10. So to be clear as mud here… a CBD product that is produced within North Carolina borders from industrial hemp grown by a licensed farmer that is under the THC requirements is both legal to possess and use within NC?

  11. As a licensed grower and registered processor of hemp in North Carolina, I appreciate the discussion in this forum. As stated above there is much misinformation about the cannabis plant, what it is, how it’s processed and what products can be made from it. But at least we are having the conversation. Thank you North Carolina legislators for continuing to position our state as one of the premier producers. This should absolutely be the People’s Plant, grown in your backyard for a multitude of uses most significantly for your well-being. The conversation about the abuse of this plant should shift focus to the medicinal benefits. Amazing how a government backed propaganda program has wrecked so many lives of everyday people. Please utilize your power and VOTE!

    • Hi Dave! I have been researching and thinking about becoming a distributor of hemp based CBD oil products here in NC. Since this is so new especially in our area, I would appreciate any knowledge that you can give me as far as opening a business for this. There is so information and mis-information at that. I want to be fully legal with this.

      • Hey Gina, I have partnered with a farm to table CBD oil company that is based out of Wilmington NC. I would love to talk to you about our organic/premium product and the business model. It is an incredible ground floor opportunity! Please email me for further information-

      • Gina,
        keep up the research and opportunities will come your way. Come visit us June 8th for our open house during National Hemp History Week. MiH Farm, Middlesex NC. We have Hemp-Talks at 10am and 2pm

  12. So I’ve read all of the above and I still have a question I know that the oil is legal within the limits but are smoking buds also legal in North Carolina?

    • I am not a lawyer so please take this as a layman’s understanding.
      If you purchase hemp flower (buds) in NC and the plant was grown in NC by a licensed with intent to market grower, who had the plant tested by the state prior to harvest and found to be ≤0.3% total THC, then yes you have legal ‘weed’ and can smoke it anywhere you choose in NC, respecting current smoking laws.

      Keep in mind authorities cannot tell the difference without testing so you may be arrested.
      Keeping the packaging and sales receipt may help you plead your case but it is a risk. Even more so if you leave the state.

  13. I currently sell CBD. My biggest thing when telling people about the products (not just the ones I sell) is that they MUST request the labs. Any company unwilling to show you lab testing should NOT be purchased from. Many companies now are becoming more and more informed about CBD, the processes in which to get the best quality, and how to properly extract it. If you have any questions you can email me at

    But a good check list to have is…

    Is it local? If not, are they transparent about their product?

    Are they Non-GMO, organic hemp plants?

    Is it packaged here in the US?

    How is it extracted? (Co2 being a very commonly used method that is safe, effective, and provides you with pure product)

    Is it 3rd party lab tested? And can you SEE the actual labs for THAT specific batch?

    And do they offer a money-back guarantee? (If they don’t trust their product, you shouldn’t either)

    Very few companies meet all of these requirements. For example, the pioneer of CBD, Charlotte’s Webb, does not. But Green Compass Global, a local NC company using 6th generation NC farmers, does.
    – Non-GMO, organic hemp
    – Packaged & marketed in the
    – CO2 extracted
    – 3rd party lab tested, proven unbiased quality product
    -30 day, 100% guarantee

    Biggest thing… do your research! A lot of people are misinformed and therefore many can get “duped.”

  14. I was just turned down for a medical job, because I had a trace of THC in my urine. I’ve been using CBD oil intermittently for fibromyalgia and other autoimmune symptoms for quite a while, never dreaming this would be a problem. I was treated like a criminal, for God’s sake. Anyway, it’s all good, I don’t intend to fight it, but I was told the CBD was illegal in NC- this article certainly clears that up..

  15. I would love to use and oil for my aniexty, ptsd, and bi polar but I’m scared I’ll get in trouble because I’m on probation. What steps would I need to take to be able to take cbd and be ok with my probation officer

  16. First of all thank you so much. It’s hard to find high-quality writing like yours these days. I truly appreciate individuals like you! Thank you for all the information on CBD.


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