By now, you’ve seen the stories. We talked about Hester J. Burkhalter’s CBD oil arrest at Disney world, and we’ve just now seen Lena Bartula’s CBD arrest in Texas.
It’s sold in stores all over the United States, and you can buy it everywhere you look online. CBD has quickly proliferated our consciousness, even with the questionable legality it has enjoyed until only recently, thanks to Industrial Hemp’s legalization with the 2018 Farm Bill. Although CBD is legal, it’s only legal under a very specific set of circumstances.
For nearly 45 years, federal law did not differentiate Hemp from other cannabis plants, all of which were effectively made illegal in 1937 under the Marihuana Tax Act and formally made illegal in 1970 under the Controlled Substances Act—the latter of which banned cannabis entirely.
The 2014 Farm Bill aimed to spur more research into Hemp, even though farmers and growers both legal and illegal already know a lot about this plant – but it did not make CBD legal.
The 2018 Farm Bill went a step further – but it did not actually legalize CBD. It is true that section 12619 of the Farm Bill removes hemp-derived products from its Schedule I status under the Controlled Substances Act, but the legislation leaves CBD on it’s highest level of control.
The Farm Bill— and recent action by the Department of Justice—have created several exceptions to CBD’s Schedule I status. The Farm Bill ensures that any cannabinoid—a set of chemical compounds found in the cannabis plant—that is derived from hemp will be legal, if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower. This means the hemp must comply with the mandated .3% THC content mark, or it will otherwise be classified as non-hemp marijuana and be illegal under federal law.
All other cannabinoids, produced in any other setting, remain a Schedule I substance under federal law and are thus illegal. The one exception is CBD products that have been approved by FDA, which currently include one drug: GW Pharmaceutical’s Epidiolex.
There is one additional legal crossroad as it relates to research. Until as recently as August 2016, any cannabis-based research conducted in the United States must use research-grade cannabis from the Marijuana Program at the University of Mississippi School of Pharmacy’s National Center for Natural Products Research. As the only authorized source of research-grade cannabis nationwide, this is admittedly tricky as has been cited as a major roadblock to cannabis research in the United States.
While the DEA did announce a policy change to foster additional research into cannabis in August 2016, by expanding the number of DEA registered cannabis manufacturers, a review of the FDA’s provisions on medical-grade cannabis still designates the University of Mississippi as the only NIDA approved supplier.
That setup exists because of cannabis’s Schedule I designation. However, with hemp-derived CBD being no longer listed on the federal schedules, questions remain among medical and scientific researchers studying CBD and its effects, as to whether they still must source their cannabis from Mississippi.
This will likely require additional information from FDA. The Food and Drug Administration who oversees drug trials and hasn’t issued clarification yet into this issue. The DEA, the Drug Enforcement Administration who still mandates that research-grade cannabis be sourced from Mississippi, while NIDA (National Institute on Drug Abuse who administers the contract to cultivate research-grade cannabis) operates to help ensure researchers do not inadvertently operate out of compliance.
Unfortunately, while the Farm Bill does legalize Hemp-Derived CBD under these specific conditions it does not legalize growing your own hemp, which still remains illegal under Federal law. Hemp will remain a highly regulated Federal crop for the protection of personal and professional organizations alike.
However, there is still confusion at the state level. The 2018 Farm Bill does not impact state cannabis law, or any of it’s provisions related to marijuana derived CBD.
As previously mentioned, CBD produced from any source other than legal industrial hemp is considered cannabis derived CBD, as is illegal. For instance, you can purchase cannabis-derived CBD in Colorado that is considered illegal at the Federal level.
This raises the question of enforcement in some states, such as Georgia and Texas where lawmakers have raised questions about the rapid pace of legislation that leaves them hurrying to catch up.
Georgia Sheriffs’ Association Executive Director Terry Norris said he’s aware of arrests for possession of vials of high-THC marijuana oil and marijuana vaping products. He hasn’t heard of arrests for CBD oil.
“All this really happened so quickly,” Norris said. “We’ve seen a phenomenal increase in advertising for CBD. It’s going to take a while for the state to implement regulations. We’re going to be dealing with the aftermath.”
Victims of the aftermath are already showing up, with 71 year old grandmother Lena Bartula arrested at a Dallas airport, for carrying a bottle of CBD oil. Bartula’s CBD oil was a full-spectrum oil, and contained traces of THC, which is still illegal in Texas.
Bartula’s case was dropped by a grand jury, but she remains shaken, advising her friends to avoid flying with CBD.
Attorneys for the CBD industry have claimed federal authorities have no right to arrest someone with CBD. They argue that hemp-derived CBD was legalized in December with the passage of the federal farm bill.
But customs officials said they were still in the process of implementing the new federal rules so, for now, products with THC are still prohibited at ports of entry, such as the one at DFW Airport, where Bartula was arrested.