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The Legality of CBD: Caveat Emptor

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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 CDB?

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.

 

7 comments 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.
    https://www.idahostatesman.com/news/business/article205729314.html
    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.

  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

    • Very useful comment Jim, good to know. Thanks!

  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.

  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 @ alex.kraeger@yahoo.com

  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”?

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