The DEA recently rescheduled certain CBD products from Schedule 1 to Schedule 5, but cannabis is still considered Schedule 1. Find out if you can now legally purchase CBD in your state. For something to be a controlled substance under the federal Controlled Substances Act (CSA), it must be specifically scheduled and assigned one of five scheduling criteria. The Drug Enforcement Agency classifies marijuana as a Schedule I drug — but does that extend to all cannabinoids? Learn all about if the DEA controlled substances list.
Is CBD a Schedule 1 Drug?
Recent changes to federal legislation categorized certain CBD products as Schedule 5 substances, which are considered to be the least dangerous and addictive.
Written by Cathy Rozyczko — Edited by Jason Brett on September 27, 2021
The short answer: Yes…and no.
If you’ve been following the national conversation about cannabis, you may have felt confused at one point or another. The legalities that surround cannabis and cannabis-derived products like CBD oil are complex, and there’s a lot of conflicting information out there.
In September 2018, the United States Drug Enforcement Administration (DEA) released an official statement , outlining their removal of “FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols [THC]” from the list of Schedule 1 drugs. However, cannabis remains a Schedule 1 drug.
Don’t worry. Below you’ll find information on how marijuana and CBD fit into the DEA’s drug schedule and more importantly, learn whether purchasing CBD oil is the right—and legal—choice for your situation.
Schedule 1 vs. Schedule 5 Drugs
The DEA divides drugs, substances, and certain chemicals into one of five categories, or “schedules” . The DEA considers Schedule 1 (I) drugs to be the most dangerous and addictive and Schedule 5 (V) drugs to be the least, with Schedule 2 (II), 3 (III), and 4 (IV) drugs falling somewhere in between.
Schedule 1 drugs are defined as having no currently accepted medical use and the highest potential for abuse. Examples of Schedule 1 drugs include heroin, LSD, cocaine, methamphetamines, and cannabis.
The DEA defines Schedule 5 drugs as medications containing low quantities of narcotics (i.e. opioids) and having a relatively low potential for abuse. Some examples of Schedule 5 drugs include Robitussin AC, Lyrica, anti-diarrheal medications, and now Epidiolex, which contains CBD and is commonly used to treat epilepsy in children with Dravet syndrome and Lennox-Gastaut syndrome.
CBD products can fall into either the Schedule 1 category or the Schedule 5 category depending on the ingredients, FDA approval, and perhaps most importantly, where they’re being purchased.
The First Schedule 5 CBD Product
Historically, any product containing an extract from the cannabis plant, like CBD oil, was classified as a Schedule 1 drug. Now though, there’s an exception.
The DEA announced in September 2018 that cannabis-derived CBD products could have Schedule 5 status, as long as they have:
- THC levels of 0.1% or lower.
- Been approved by the U.S. Food and Drug Administration (FDA).
Despite cannabis having been a Schedule 1 drug since 1970, the FDA approved Epidiolex, a CBD-based medication for epilepsy in June 2018. If the DEA had not made the above CBD reclassification in September, Epidiolex would not have been available under prescription. (It is for this same reason that physicians who practice in certain states are only able to recommend CBD to their patients, not prescribe it.)
Unfortunately, the FDA is very selective in which products it approves, and at the time of this writing, Epidiolex remains the only CBD product that falls into the Schedule 5 category.
Because cannabis and its derivatives are in the Schedule 1 category, non-Epidiolex CBD products are also considered to be Schedule 1 substances on the federal level (your state has the final say as to whether cannabis and CBD specifically are safe and legal for consumption—more on that below).
But cannabidiol is just one component of the whole cannabis plant, and it’s important to understand the distinction between the two.
CBD and Cannabis: What’s the Difference?
The Cannabis sativa plant can be broadly split into two varieties: hemp and marijuana. Both plants contain over 100 cannabinoids, including cannabidiol (CBD) and tetrahydrocannabinol (THC) . While marijuana has a high THC content, hemp is richer in CBD. It’s THC that produces the intoxicating, high-producing effects felt by people who smoke marijuana. CBD, on the other hand, is not intoxicating and will not get you high.
CBD is extracted from the hemp plant, meaning it naturally contains low levels of THC. Furthermore, CBD product makers typically try to isolate the CBD as much as possible knowing they have customers who’d like the benefits of CBD without the high of THC.
Though, the very fact that CBD is derived from the cannabis plant places it into something of a legal quagmire, despite the fact that cannabidiol does not negatively impact your mental or physical capacities. For now, on the federal level, CBD oil and other cannabidiol products remain Schedule 1 substances (except for Epiliodex).
Federal Law vs. State Law
So, if most CBD products are classified as Schedule 1 drugs, why are they available for sale online , in wellness stores, coffee shops, and even certain Walgreens and CVS locations ?
With the passing of the 2018 Farm Bill and an ever-growing amount of research being published about the potential health benefits and medical uses of CBD , many states have taken legalization into their own hands. Now, a majority of states have either decriminalized or legalized the use of cannabis products, including CBD oil.
State-Specific Laws on CBD
Depending on the state in which you live or in which you want to purchase CBD, the DEA’s drug scheduling system may be of the utmost importance, or it may not matter at all. In terms of CBD availability, states can be split into three groups: red states, amber states and green states.
Red states are in line with federal law, meaning any cannabis products, including CBD oil, are illegal. Currently, the red states are:
- South Dakota.
If you live in one of these three states, you won’t legally be able to purchase or consume CBD products. As more research is conducted and the stigma around CBD use continues to disappear, you could see a change in the (hopefully) near future.
Amber states allow some CBD products to be sold under certain conditions, specifically, for medical use. In order to legally purchase CBD oil in amber states, you may need to possess a medical marijuana card or have a prescription from your doctor. Currently, the amber states where it’s legal to purchase and use any cannabis product—including those with THC—for medicinal purposes are:
- New Hampshire.
- New Jersey.
- New Mexico.
- New York.
- North Dakota.
- Rhode Island.
- West Virginia.
Amber states where it’s legal to purchase cannabis only in the form of CBD products for medicinal purposes are:
- North Carolina.
- South Carolina.
So, if you live in an amber state, it’s especially important you be familiar with the laws specific to cannabis and CBD products. In some states, you can legally purchase any cannabis-derived products for medical reasons; in others, you can legally only purchase CBD products (with little to no THC) for medical reasons.
Green states are the most flexible of all and allow for the sale and consumption of cannabis and cannabis-derived products for medicinal and recreational purposes. Currently the green states include:
- Washington D.C.
If you live in one of these 11 states you can buy anything from ‘special,’ THC-infused brownies to CBD oil, as long as you meet the minimum age requirements. In green states, you will find CBD oil available in a large number of stores and will only need a photo ID in order to make a purchase.
Purchasing CBD in Your State
CBD is considered illegal under federal law, but your state’s laws take precedence.
If you live in a green state that allows for the sale and consumption of cannabis products for any reason, or an amber state that allows cannabis or CBD for medical reasons and you qualify, it’s perfectly legal for you to buy and use CBD products.
If you’re interested in using CBD oil or related CBD products and it is legal in your state, don’t hesitate to speak to your primary physician about it. You can also speak to a cannabis doctor for more information on using CBD to treat certain conditions.
The information contained in this page is meant to serve as an educational tool and should not be substituted for legal advice. While this article was correct at the time of publishing, it is wise to get up-to-date, state-specific legal information before making any CBD purchase.
CBD Has Never Been A Controlled Substance
My job is to shed light. Most specifically on the great intricacies of cannabis law, policy, and regulation. The past several years have seen extensive debate about the legal status of cannabidiol (CBD). Is it legal? Was it ever a controlled substance? How is it regulated? Lawyers, industry professionals, and learned scholars debate this with so much vigor that it creates confusion, if not a misstatement of the facts. It hurts my ears and burns my eyes to hear or see an argument that identifies CBD as a controlled substance, because the law is quite clear in this regard.
For something to be a controlled substance under the Federal Controlled Substances Act (CSA), it must be specifically scheduled and assigned one of five scheduling criteria. Schedule I is the most restrictive, which indicates that this controlled substance has no medicinal value and a high potential for abuse. Schedule V, the least restrictive, indicates a drug with currently accepted medical uses and treatments in the United States and a low potential for abuse. Schedule V drugs typically consist of preparations containing limited quantities of certain narcotics, but not always. When one combs through the CSA, the word “cannabidiol” or “CBD” is nowhere to be found — not in the code of federal regulations or in the enacting legislation. One must look deeper to find out what is scheduled and what is not.
Hemp-derived CBD oil
First, let’s look at the definition of marijuana with an “H” (marihuana), which is indeed scheduled. This comprises all parts of the Cannabis Sativa L. plant, excluding non-viable seeds stock and fiber, but including the resins and the remainder of the plant. CBD, of course, is present within the marijuana plant. If you derive CBD from the marijuana plant, it would in fact be controlled, because it came from a controlled substance. This is known as the “source rule” — the source of the material dictates its legality. But what if CBD and other non-psychoactive cannabinoids are derived from a legal source, such as the 25 other plant species that contain levels of cannabinoids or industrial hemp?
The only cannabinoid mentioned in the CSA is tetrahydrocannabinol, THC, the psychoactive compound in cannabis. While it is specifically scheduled, courts have disagreed on whether THC needs to be synthetically or naturally derived to fall within the definition of tetrahydrocannabinol under the CSA. Six years ago, industrial hemp was for the first time ever defined separately from marijuana as holding less than 0.3 Δ9-THC percent by dry weight. The 2014 Farm Bill specifically authorized the use of industrial hemp as a legal substance for purposes of market, scientific, and agricultural-based research. The CBD industry exploded because of the “market-based research exception” — one could only study the plant with a viable market in place for its products. This position was litigated in 2018 in HIA v. DEA III and the restrictions were removed by the 2018 Farm Bill.
The industrial hemp plant is no longer a controlled substance, including all of its derivatives, not the least of which is THC. Even THC from industrial hemp is no longer defined as a controlled substance (we’ll dive into this in more detail at a later time). The 2018 Farm Bill didn’t remove CBD from the Controlled Substances Act, but clarified that it was never on it. To be perfectly clear, if CBD is derived from a lawful substance, it is not and never has been a controlled substance. That’s a fact and the law.
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Yet complexities and legal challenges remain. Greenwich Biosciences (the North American subsidiary of GW Pharmaceutical) had received approval for the new drug, Epidiolex, which was identified and placed on schedule V. While CBD was not defined as schedule V, Epidiolex was because the CBD present in it is derived from marijuana. But as with every other aspect of the growth of the cannabis industry, the law rules. The makers of Epidiolex recently requested that it be removed entirely from the schedule of substances and the DEA agreed with this request.
When derived from lawful materials such as hemp, CBD and other non-psychoactive cannabinoids are not controlled substances because they’re not specifically scheduled. Still, there is pushback. Some folks refer to the Analogue Act, a section of the CSA passed in 1986 allowing any chemical similar to a schedule I or II substance to be listed as schedule I if it’s intended for human consumption. However, CBD is not identified as a chemical in schedule I or schedule II and is one of more than 100 identified cannabinoids contained within the cannabis plant.
The nexus of cannabis law, policy, and regulations has evolved a great deal in the past decade. Prior to the 2014 and the 2018 Farm Bill there was no legal distinction – it was all marijuana. Now, our definitions of cannabis are rooted in science and a plant’s legality is judged based on its chemical makeup.
Despite the perceived uncertainty regarding the legality of the compound CBD, we can officially put it to rest. Unless derived specifically and strictly from a marijuana plant, CBD is not now, and has never been, a controlled substance.
Drug Scheduling & Controlled Substances in the US: Regulations For Cannabinoids
The Drug Enforcement Agency classifies marijuana as a Schedule I drug — but does that extend to all cannabinoids?
The DEA classifies marijuana as a Schedule I drug, but does that mean all cannabinoids are a Schedule I drug, too?
There isn’t one simple answer, unfortunately.
The DEA classification of non-psychoactive cannabinoids like CBD depends on what type of plant they’re derived from and what type of product it is.
This doesn’t mean cannabinoids are completely illegal — most states have completely legalized hemp-derived products, including THC isomers like delta 8 and delta 10 THC.
Table of Contents
How Does Drug Scheduling in the United States Work?
The drug scheduling system in the United States is a classification system used by the Drug Enforcement Agency, or DEA. The DEA uses drug scheduling to classify drugs, substances, and chemicals based on their medical uses and potential for abuse or addiction.
Each schedule correlates with what the DEA determines as accepted medical use and abuse potential. For example, Schedule I drugs have no accepted medical use and a high potential for abuse, according to the DEA. Schedule V, the lowest in the DEA’s scheduling system, refers to drugs with low potential for abuse or that contain small amounts of narcotics.
While the DEA does hold power to enforce drug laws throughout the country, it’s important to remember that the scheduling system doesn’t necessarily mean that a drug is safe or not. For instance, THC (tetrahydrocannabinol) is on the Schedule I list despite having known, accepted, and frequently prescribed medical use cases and low potential for abuse.
Drug scheduling also doesn’t correlate with whether a drug is legal or not. For instance, cocaine is considered Schedule II, which includes drugs with high potential for abuse as well as accepted medical use. It’s no secret that cocaine hasn’t been widely used for medical purposes in several decades — but it remains on the list.
Why Does Drug Scheduling Exist?
So if DEA drug scheduling doesn’t always correlate with safety or illegality, why does it exist at all?
When the Controlled Substances Act was enacted in 1971, it established the drug scheduling system and the DEA’s enforcement of those drugs. This law was intended to give the federal government a way to limit access to (and, inadvertently, research on) drugs that are either controlled substances or dangerous to the public.
The drug scheduling system exists so that the public and the government, namely law enforcement agencies like the DEA and police, can enforce rules and regulations around drugs in the US. As drugs climb higher on the scheduling list, they’re easier for the federal government to control and easier for lawmakers to create policies around.
As you can imagine, this system is ripe for political bias and racial inequality. The reasons that certain drugs remain in certain schedules, like marijuana, have to do with the way police view the people that have used those drugs historically.
Schedule I drugs have no accepted medical use, lack of safety for use under medical supervision, and a high potential for abuse.
Examples of Schedule I substances are heroin, marijuana, LSD, peyote, ecstasy, and magic mushrooms.
Schedule II drugs have a high potential for abuse and addiction. This includes some narcotics and some non-narcotics.
Examples of Schedule II substances are oxycodone, morphine, opium, cocaine, amphetamine, methamphetamine, fentanyl, methadone, and more.
You might recognize Adderall and Ritalin from the Schedule II list.
Schedule III drugs have a lower potential for abuse than Schedule I and II drugs and potential for addiction.
Examples of Schedule III substances are products containing less than 90 mg of codeine per dose, ketamine, and anabolic steroids.
Schedule IV drugs have a lower potential for abuse than Schedule I, II, and III drugs.
Examples of Schedule IV substances include diazepam (Valium), lorazepam (Ativan), clonazepam (Klonopin), and alprazolam (Xanax).
Schedule V drugs have a lower potential for abuse than Schedule I-IV drugs. Most Schedule V drugs contain small amounts of narcotics or other high-schedule substances.
One example of a Schedule V substance is Robitussin with codeine.
What Are the Penalties For Possessing Schedule I Restricted Substances?
As discussed, the drug scheduling system doesn’t necessarily correlate with illegality. However, some Schedule I drugs are also illegal at the federal level, including marijuana, which has only been legalized at the state level.
The penalties for possessing Schedule I substances that are restricted depending on your record, how much of the drug you have, whether you have evidence of intent to distribute, and the state you’re in.
If you hold a medical marijuana card or live in a state that has legalized weed, you don’t have to worry about the federal government cracking down on you. You are legally entitled to have that Schedule I substance within state lines — make sure not to cross over to another state with your stash in tow.
Generally, possession of a Schedule I substance other than marijuana in a legal state will land you around one year in jail and a multi-thousand-dollar fine. You will also lose your driver’s license for six months.
If you are caught with intent to distribute or while manufacturing a Schedule I substance, you may be looking at a fine of multiple tens of thousands of dollars, as well as a decade or two of prison time.
Equivalents of Schedule I In Other Countries
The drug scheduling system in the US is somewhat unique. Most other countries have some form of prescription drug regulation, but the classifications used by the US are dissimilar from other places. Here’s the breakdown.
In Canada, the National Drug Schedules were established by the Controlled Drugs and Substances Act of 1996. Drugs may appear on schedules I, II, or III and are otherwise listed as uncontrolled substances in schedules IV or V.
Schedule I drugs are those that require a prescription, require a diagnosis before prescription, and are controlled by provincial pharmacy regulations. This includes the derivatives and preparations of certain substances like opium poppy, coca, fentanyl, and amphetamines. That means cocaine, opium, morphine, hydrocodone, and more are all Schedule I drugs in Canada.
THC and CBD are not listed on Canada’s scheduling system, but synthetic cannabinoids are. That includes some common THC:CBD ratio drugs like Nabilone.
B) The United Kingdom
In the United Kingdom, the Misuse of Drugs Act of 1971 established a list of controlled substances at the same time as the US. Like Canada, the UK’s drug scheduling system is mainly used to help pharmacists and doctors better understand the prescriptions they’re doling out while also giving the government a way to control those drugs.
The UK’s Schedule 1 includes drugs that are not used medically, such as DMT and LSD. However, Schedule 2 is more similar to the US’s Schedule I, containing drugs like cannabis, heroin, cocaine, methadone, and fentanyl.
Schedule 2 means that when doctors prescribe the drugs listed, there must be a complete description of the drug’s strength, amount, form, and use. While cannabis is present on the Schedule 2 list, CBD is not a controlled substance. However, CBD in the UK contains less than 0.2% of THC — lower than the threshold for CBD in the US.
The drug scheduling system in Germany includes Anlage I and II — drugs that are illegal to prescribe — and Anlage III — drugs that require controlled substances prescriptions.
Similar to the UK and Canada, German scientists may study the drugs on Anlage I and II with special permission from the government. In the US, Schedule I drugs are wholly impossible for scientists to study, which is part of what makes it so hard to move marijuana off the Schedule I list.
Anlage I and II include drugs like cannabis, codeine, morphine, psilocybin (magic mushrooms), and more. Anlage III includes substances such as amphetamine, medical cannabis produced in state-regulated labs, diazepam, fentanyl, lorazepam, methadone, Nabilone, and more.
Germany’s authorities can only prosecute you for holding controlled substances without a prescription or those on the Anlage I and II lists. Regulated medical marijuana and CBD products are controlled, but you can easily get them with a prescription.
Unlike the other countries on this list, Spain does not have a drug scheduling system. The Spanish government refers to their 1961 Single Convention on Narcotics Drugs and 1971 Convention on Psychotropic Substances to define narcotics and psychotropic drugs, but a scheduling system isn’t in place for the government’s use.
However, penalties for drug possession do differ depending on the hazards of the drug at hand, with more dangerous drugs resulting in longer jail time and more expensive fines. Additionally, it isn’t illegal to possess a drug for personal use — just trafficking and consuming it in public will cause you problems with the police.
Weed is decriminalized in Spain, but you won’t find dispensaries there. CBD is entirely legal at concentrations below 0.2% THC.
In France, the drug scheduling system is used to classify illicit substances. Each list, ranging from I to IV, includes a category of controlled and illegal substances.
List I is most similar to the US’s Schedule I, with heroin, cocaine, cannabis, methadone, and opium listed because they’re considered narcotics by the French government. It’s illegal to possess or use any of these List I-IV drugs, which include other substances like codeine, amphetamines, LSD, ketamine, and Nabilone, without a prescription.
Despite efforts by the French government, CBD has been ruled legal in France by the European Union. The French government still prohibits the smoking of CBD flower, but all other CBD products with 0.2% or less THC are legal.
F) Australia & New Zealand
In Australia, the drug scheduling system consists of several lists that denote how the public can access those substances. For example, Schedule 7 includes dangerous poisons that may have special rules around sale and storage.
The most similar to the US’s Schedule I is Schedule 8, which is titled Controlled Drugs and includes cannabis, fentanyl, morphine, oxycodone, methadone, and more. This means the government can regulate the prescription and sale of these drugs.
In Australia, medical marijuana is legal, as is CBD. CBD is listed on the Schedule 3 list for Pharmacist Only Medicine, which means the drug requires a doctor’s prescription for sale.
The drug scheduling system in New Zealand uses classes, but the system isn’t used to prosecute people who hold or use those drugs. In fact, nearly all drug possession has been effectively decriminalized in New Zealand in 2019’s Misuse of Drugs Amendment Bill, though intent to distribute and use of drugs can still garner legal action.
New Zealand’s Class B includes substances with a very high risk of harm, which are only available with prescriptions. Class B contains amphetamine, cannabis oil, MDMA, opium, oxycodone, and more. Class C contains drugs with a moderate risk of harm, including cannabis plants, leaves, and seeds.
Cannabis is not legal in New Zealand, but CBD is legal with a prescription. CBD falls into Class B since it is cannabis oil and so must be prescribed by a doctor or pharmacist.
Current Legal Status of Cannabinoids
None of the non-psychoactive cannabinoids derived from hemp are considered Schedule I. This includes cannabidiol (CBD), cannabigerol (CBG), cannabinol (CBN), cannabichromene (CBC), and others.
There are more than 100 cannabinoids and 400 terpenes in cannabis plants. The only one listed on the DEA list of restricted substances is delta 9 THC.
Legal Differences Between Hemp & Marijuana
Hemp is a type of cannabis plant with less than 0.3% THC, whereas marijuana plants contain more than 0.3% THC.
All CBD products derived from hemp plants contain less than 0.3% THC and, in the eyes of both federal and state governments, are not considered marijuana products. However, any product derived from a marijuana plant is considered a marijuana product according to the DEA — even if there’s less than 0.3% THC in the product.
The 2018 Farm Bill
The change in CBD’s legal status is largely due to the 2018 Farm Bill, which legalized cannabis plants with less than 0.3% THC content. This was the first time the US government recognized the difference between a cannabis plant with high THC content and a hemp plant with low THC content.
The result was that hemp plants were suddenly totally legal in the US, which created a huge boom in the CBD industry. Previously, CBD companies were dealing with outsourced hemp farms and under-the-table labs, and now they could grow their own plants, in the US, totally on the books.
This also meant that banks were more willing to give loans to CBD businesses since they knew the federal government wasn’t going to crack down on the industry. CBD companies could suddenly ship products and plants across state lines without worrying about breaking federal law.
Why Is Marijuana (Delta 9 THC) A Schedule I Drug?
What is a Schedule I drug anyway? The DEA defines Schedule I as a drug, substance, or chemical with “no currently accepted medical use and high potential for abuse.” The main difference between Schedule I drugs and Schedule I-V drugs is an accepted medical use.
Although other drugs in the Schedule I class are highly dangerous and addictive, like heroin, marijuana has been scientifically proven to be safe for recreational use time and time again.
The reason marijuana remains a Schedule I drug is largely politicized and bureaucratic. While the passage of the 2018 Farm Bill de-scheduled hemp, legalizing CBD products derived from hemp, it’s still challenging for new studies on marijuana specifically to get underway. Without further studies, dispelling the Schedule I requirement of “no accepted medical use” is even more challenging.
With more and more states legalizing marijuana in the last five years, labs have been able to conduct more studies than ever on the medical benefits and safety of marijuana. There are renewed calls for the rescheduling of marijuana in Congress, but there’s no clear timeline of when marijuana may be rescheduled.
Is Delta 8 THC A Schedule I Drug?
Delta 8 THC is not considered a Schedule I drug as long as it’s made from hemp.
Despite being a form of THC, delta 8 is not listed on the DEA list of Schedule I substances. The same rules apply for delta 10 THC and delta 7 THC.
Final Thoughts: Are Cannabinoids Schedule I Drugs?
The only cannabinoid listed as a Schedule I drug in the US is delta 9 THC. Other forms of THC are considered a legal grey area if they’re made from hemp and illegal if they’re made from marijuana.
The only exception here is individual US states with recreational marijuana laws or licensed medical programs.
CBD and other non-psychoactive cannabinoids are not listed as Schedule I drugs.
Always ensure that you buy cannabinoid products from a reputable manufacturer with third-party testing, U.S.-grown hemp, and less than 0.3% THC to ensure you’re ordering federally and state-compliant products.