The Legality of CBD: Caveat Emptor

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 CBD?

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.