Can I be charged for possession of hemp or CBD?
With the passing of the Federal 2018 Farm Bill came the legalization of industrial hemp and hemp derivatives including cannabidiol (“CBD”).
Despite the legality and regulation of this budding new industry, some CBD consumers are facing charges for marijuana possession as law enforcement officials struggle to distinguish legal hemp and CBD from illegal marijuana. Recently, a 69 year old grandmother arrested at Disney World made headlines for her possession of CBD oil used for health ailments. Locally, a Johnston County, NC resident was charged last week with possession of hemp flower used to treat anxiety.
In order to be legal hemp and hemp products (including CBD) must contain less than 0.3% tetrahydrocannabinol (THC) which is the active ingredient in marijuana that creates the feeling of being high. Proponents of hemp and CBD products claim an array of health benefits including treatment for seizures, arthritis, pain-relief, and anxiety all without the impairing effect of THC. CBD is often infused in cosmetic products like lip balms and oils, added to foods (although not permissible per FDA guidelines) like honey, gummies, and even beer, and is even contained in an FDA approved drug used to treat epilepsy.
Unfortunately, individuals using hemp and CBD products may find themselves facing criminal prosecution. Although the use and possession of hemp and CBD is not illegal, law enforcement officials sometimes have a hard time telling the difference between hemp and marijuana which is still illegal in all forms in North Carolina. The confusion is understandable given that hemp flower, which can be smoked by CBD users, looks and even smells like marijuana. Further, even though hemp and CBD products can contain only 0.3% THC, these low levels can still test positive on a police officer’s field test. Hemp users should also be concerned that drug tests may return a positive result on some drug tests.
Because legal hemp and CBD are very new to the market, police officers may not yet be trained on distinguishing the difference between hemp and marijuana. Until that happens we can reasonably expect to see a rise in the number of arrests and prosecution of individuals and businesses that use or sell hemp products. It is in your interest the have a criminal defense attorney experienced in this specific area of the law. If you have been charged with a drug offense, contact Dysart Willis to speak to an attorney who can help.
You Probably Shouldn’t Bring CBD Oil to an Airport
The substance’s sudden ubiquity might make it seem perfectly legal. Federal law enforcement sees things differently.
Most Americans probably know it’s a bad idea to bring weed to the airport. Cannabis has been federally illegal since the 1930s, and one of modern air travel’s most prominent features is the layers of federal law-enforcement inspection one must traverse in order to board a plane. Even in states that have legalized marijuana for recreational use, carrying too much of it through TSA can get you arrested; the agency’s official policy is that travelers can’t even bring medically prescribed cannabis through security.
But what about cannabidiol? CBD, as it’s more commonly known, can be derived from both hemp and marijuana plants, and it has exploded in popularity among American consumers in the past two years as a purported salve for almost any ailment you can think of, including anxiety, chronic pain, inflammation, nausea, epilepsy, and acne. It can be eaten, vaped, or applied to the body in lotion, and even Coca-Cola has shown interest in entering the market. But like tetrahydrocannabinol, or THC—the psychoactive ingredient in marijuana—CBD exists in a state of conflicting legality, depending on your jurisdiction.
CBD doesn’t get you high, and products containing it can be bought on websites and in storefronts across America, which has lent the chemical a veneer of consumer normalcy that belies its purgatorial legal status. CBD oil gets squirted into lattes and baked into vegan brownies, and it’s added to calming treats for nervous pets. But no matter how legal and mundane it might seem in your local health-food store or bakery, CBD’s quasi-contraband status and nonexistent regulatory standards mean that you should probably leave it out of your carry-on.
According to local news reports, consumer confusion over CBD has had serious consequences for travelers at the Dallas airport. Federal authorities at the airport told the Dallas–Fort Worth NBC affiliate KXAS that the CBD interception rate has “skyrocketed” in the past year, although it’s not clear how often people are being intercepted, or if other airports are dealing with similar spikes. A spokesperson for U.S. Customs and Border Protection told me that there was no immediately apparent nationwide trend. But some of the incidents in Dallas have resulted in felony charges.
That doesn’t surprise Griffen Thorne, a Los Angeles–based lawyer at the firm Harris Bricken, where he specializes in cannabis law. “Until the law is very, very clear, people are going to get arrested for possession of things that aren’t explicitly illegal,” he says. “Federal authorities in general are much less likely to let people off the hook” than local law enforcement.
The 2018 Farm Bill, which passed in December and was hailed as a win for CBD advocates, may also lead some fliers to feel an unwarranted comfort in traveling with the substance. The bill legalized hemp cultivation throughout the United States, which will allow CBD to be produced on an industrial scale, hastening the commoditization of the substance as a lifestyle product or pharmaceutical ingredient. But just because growing hemp is legal doesn’t mean that there are no restrictions on its derivatives.
“There’s nothing in [the Farm Bill] that explicitly protects consumers,” Thorne says, which leaves CBD’s legality as a consumer product up to interpretation. That’s also a problem in lower jurisdictions. The New York City Department of Health, for example, recently made it clear that the city will penalize restaurants that put CBD in food, but so far, shops are still allowed to sell oils or creams containing the chemical. Earlier this year, the pharmacy mega-chain CVS announced it would roll out CBD products to 800 of its American stores.
CBD derived from hemp is usually the source of products found outside regulated marijuana dispensaries, but Thorne says the distinction is complicated under federal law and may not be immediately apparent to individual law-enforcement officers. Although CBD is no longer a schedule I drug under the Controlled Substances Act, the Food and Drug Administration, for example, considers all CBD products illegal no matter their source. (A TSA spokesperson did not respond to a request for comment, although the agency told The New York Times that it is generally focused on looking for national-security threats, not small amounts of recreational drugs.)
The lack of clear regulatory oversight is another reason that travelers might have trouble with airport authorities. There’s no governing body to set standards on CBD purity or labeling, which means that products marketed as CBD could contain more than enough THC to attract the attention of a drug dog and pass chemical testing that would characterize them as marijuana under the law. That was the case with at least one of the Dallas arrests, according to the CBP, which didn’t comment further.
Thorne says little can be done on the consumer end to guarantee what’s in your CBD: “It’s kind of a dangerous game when you’re walking through an airport and you’re taking a risk that something either is or is not federally illegal.” He emphasized that hidden THC, rather than confusion over CBD’s legality itself, is what travelers should really be worried about, and that lack of intention to possess THC wouldn’t get them off the hook. “It’s sort of like speeding in a car,” Thorne says. “If you say, ‘I didn’t know I was speeding,’ you’re probably still going to get in trouble.”
These concerns are especially salient for international travelers. Thorne says that even fliers leaving from states that have legalized recreational marijuana should be conscious of how laws differ in their destination country, and people trying to enter the United States with a questionable CBD product could get in far more trouble than a simple possession charge. For noncitizens, possessing THC while trying to enter a U.S. port could lead to felony charges or deportation.
For nervous fliers, CBD legal worries might be especially cruel. Although science is just starting to examine the substance’s effects on the body, CBD has found one of its most ardent markets among people who say it calms their anxiety. Air travel is a common trigger for panic attacks and spiking anxiety levels, but until federal cannabis law is settled, it might be best simply to white-knuckle your next flight.
“The best thing for consumers to do is just not to bring it into any federal jurisdiction, period,” Thorne says. “Especially anywhere on a plane.”