Under both Illinois and federal law, it  is now legal for companies to sell hemp-derived products such as CBD oil, provided that the hemp-derived product (including CBD oil) meets the statutory definitions of “hemp” and “industrial hemp.”

For some background, CBD (cannabidiol) oil is a non-psychoactive cannabinoid compound and is the second most common naturally occurring cannabinoid (of which there are more than sixty) found in marijuana, as well as being the most common cannabinoid compound found in hemp. THC (delta-9 tetrahydrocannabinol), on the other hand, is a psychoactive cannabinoid compound that is most prevalent in marijuana and found in hemp in much lesser concentrations.

Note that CBD can be extracted from both marijuana and hemp, and the answer to your question depends in large part upon whether your customer’s CBD oil is derived from one or the other. CBD oil derived from marijuana may be more problematic under current state and federal law (at least in terms of monitoring compliance), while CBD oil derived from hemp should not be in most circumstances.

With the passage of the federal Agriculture Improvement Act of 2018, “hemp” is no longer a Schedule I controlled substance under the federal Controlled Substances Act, and it is now legal to sell in the United States — provided that it meets the federal definition of “hemp.” Under the federal law, “hemp” means “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof 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.”

Likewise, Illinois passed the Industrial Hemp Act in 2018, which removed industrial hemp from the general prohibition on manufacturing, delivering or possessing “cannabis” with the intent to deliver under the Illinois Cannabis Control Act. Under the Illinois law, “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 any intermediate or finished product made or derived from industrial hemp.”

Also note that health food products containing CBD oil generally must receive FDA approval. The FDA has announced that products containing CBD which are marketed with a claim of a therapeutic benefit, or which are used as food additives or dietary supplements, first must receive FDA approval before being introduced into interstate commerce.

For resources related to our guidance, please see:

• Controlled Substances Act, 21 USC 802(16) (“(A) Subject to subparagraph (B), the term ‘marihuana’ means all parts of the plant Cannabis sativa L. . . . (B) The term ‘marihuana’ does not include

(i) hemp, as defined in section 1639o of Title 7; or

(ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”)

• Agriculture Marketing Act of 1946, 7 USC 1639o(1) (“The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof 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.”)

• Illinois Cannabis Control Act, 720 ILCS 550/5 (“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis . . . .”)

• Illinois Cannabis Control Act, 720 ILCS 550/3 (“‘Cannabis’ includes marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa . . . ‘Cannabis’ does not include industrial hemp as defined and authorized under the Industrial Hemp Act.”)

• Statement from the FDA Commissioner on signing of the Agriculture Improvement Act (December 20, 2018) (“In particular, we continue to be concerned at the number of drug claims being made about products not approved by the FDA that claim to contain CBD or other cannabis-derived compounds. Among other things, the FDA requires a cannabis product (hemp-derived or otherwise) that is marketed with a claim of therapeutic benefit, or with any other disease claim, to be approved by the FDA for its intended use before it may be introduced into interstate commerce.”)

• Statement from the FDA Commissioner on signing of the Agriculture Improvement Act (December 20, 2018) (“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.”)
   
• Statement from the FDA Commissioner on signing of the Agriculture Improvement Act (December 20, 2018) (“It should also be noted that some foods are derived from parts of the hemp plant that may not contain CBD or THC, meaning that their addition to foods might not raise the same issues as the addition of drug ingredients like CBD and THC. We are able to advance the lawful marketing of three such ingredients today. We are announcing that the agency has completed our evaluation of three Generally Recognized as Safe (GRAS) notices related to hulled hemp seeds, hemp seed protein and hemp seed oil and that the agency had no questions regarding the company’s conclusion that the use of such products as described in the notices is safe. Therefore, these products can be legally marketed in human foods for these uses without food additive approval, provided they comply with all other requirements and do not make disease treatment claims.”)