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Lawmakers finally passed The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act, and by providing a detailed process for the cultivation of hemp. The 2018 Farm Bill gives the US Agriculture department regulatory authority over hemp cultivation for CBD oil at the federal level. In turn, states have the option to maintain primary regulatory authority over the hemp plants cultivated to make CBD products within their borders by submitting a plan to the USDA. This federal and state interplay has resulted in many legal changes at the state level. Indeed, most states have introduced bills that would authorize the commercial production of hemp plants within their borders. A smaller but growing number of states also regulate the sale of CBD products derived from hemp.

Idaho is probably the worst state in the country to get caught with CBD. Hemp cultivation is not legal, even after the passage of the 2018 Farm Bill. The idaho state legislature considered House Bill 122 earlier this year. It would have allowed for the legal cultivation of hemp for CBD products. It stalled out in April.

Long before that bill failed, the Idaho Attorney General issued an informal opinion on the legality of Hemp-CBD in 2015. He concluded that in almost all cases, the possession of any form of CBD, whether derived from marijuana or hemp, is illegal.  According to the opinion, in Idaho, products containing CBD are only legal if the two following criteria are met:

  • the substance cannot contain any THC; and
  • the substance must be excluded from the definition of “marijuana” under Idaho Code § 37-2701(t)

In Idaho the only legal part of the cannabis plant, whether hemp or marijuana, are mature stalks of the plant or fiber produced from the stalks oil or cake made from the seeds or plant,any other compound, manufacture, saltines, derivative, formula, or preparation of the mature stalks; or the sterilized seed of such plant which is incapable of germination.

For a CBD product to be legal in Idaho and it must be totally THC free and must come from one of the five categories mentioned above. It doesn’t matter whether the CBD was derived from hemp or marijuana. If derived from anything other than the seeds or stems of the cannabis plant, it is illegal.

Stems and seeds aren’t going to have high levels of CBD or any other cannabinoids so really this just means that CBD is pretty much outlawed in Idaho with one notable exception: Idaho allows for FDA-approved CBD, such as that found in Epidiolex. The Idaho Office of Drug Policy’s webpage on CBD Drug Policy indicates that Idaho’s position on CBD has not changed as of June 2019 and that the informal opinion from 2015 is still followed.