Growing hemp, which is the non-psychoactive cousin of marijuana that has a host of industrial uses (everything fro textiles to twine), is legal under the 2018 Farm Bill Congress passed late last year. Dozens of states are actively working to create a framework to expressly allow for the cultivation and sale of hemp, as many outlawed in state statute to match federal law. Idaho is one of a handful of states where driving through with a sizable load of hemp can result in serious time in prison.

Last year – weeks after the 2018 Farm Bill was passed – three truck drivers hauling hemp through Idaho were stopped and arrested by police. Two pleaded guilty to low-level felony charges and will be sentenced in a few days. Another truck driver was arrested earlier this year and faces a five-year minimum mandatory sentence. That case is pending, though Los Angeles cannabis lawyers see the federal agency’s opinion as one more thing likely to urge prosecutors toward the step of dropping these charges (likely moreso than the 13,000 online signatures in support of the trucker).

The company that employed the first two truckers is appealing to the U.S. Court of Appeals for the Ninth Circuit, seeking reversal of that verdict AND return of its hemp product – and/or compensation for it – arguing the haul was in fact legally produced in Oregon for shipment to Colorado when it was seized by Colorado authorities.

The Idaho House passed a bill that legalized hemp officially after those three arrests – by a measure of 63-7. However, both law enforcement and prosecutors put heavy pressure on state Senators to oppose it, resulting in an amended Senate version that would have kept hemp illegal – yet allowed its transport with a variation of restrictions. Because the state House rejected the amended proposal, the law remains as-is (meaning hemp is still illegal under state law – despite federal law).

It is this conflict in statute that has been causing headaches – because it is state – not federal authorities that are arresting and prosecuting these individuals. States contend that because of a technicality in the 2018 Farm Bill, they are still free to prosecute individuals in the interim between the federal law’s December 2018 passing and the time state lawmakers pass their own hemp laws.

Federal Agriculture Department officials disagree, pointing to the 2014 Farm Bill which already said that neither states nor Indiana tribes were allowed to ban interstate transport of the plant (which was allowed under that provision for research purposes). Does it matter that the hemp being transported was not being used for that purpose? The DOA says no, but state prosecutors say otherwise.

Still, with federal regulators arguing in favor of the truck drivers and their employers, we hope prosecutors in Idaho will use commonsense, drop the charges against the drivers and return the valuable product to the companies.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

USDA says states can’t ban hemp trucks, June 23, 2019, By Nathan Brown, Post Register

However, Los Angeles cannabis law firm attorneys urge reefer retailers to exercise caution. It’s unclear whether removing the state level ban would mean companies are legally in the clear to manufacture/sell CBD-infused products and supplements so long as the U.S. Food & Drug Administration has made it clear that such sales are illegal under federal law. The agency is reportedly reconsidering this stance amid intense pressure from the cannabis industry, but thusfar, there has been no shift in policy.

At issue are hemp-derived CBD (cannabidiol), a non-psychoactive extract of the hemp plant, which is a type of cannabis that contains less than 0.03 percent THC (tetrohydrocannabidiol), the cannabis plant extract that gives users a high. The historic 2018 U.S. Farm Bill formally differentiated hemp from its cannabis cousin, marijuana, opening the door for a host of cannabis-derived products, from textiles to beauty products.

Yet even as purveyors of Southern California food and beverages in states where recreational marijuana is legal infuse THC-laden products into everything from pizza and beer to candies and chips, they haven’t technically been allowed under either state or federal law to do the same with CBD.

Current CBD Food Sales Don’t Comply With State, Federal Regulations

This of course seems entirely nonsensical, given that CBD objectively poses less serious health or safety risk than marijuana use – which is saying something considering marijuana is generally considered pretty safe for use by adults. Unlike opioids or cocaine, overdoses are virtually a non-issue (with disputes on cause even when they do occur). The biggest problems are those arising from impaired driving and, on rare occasions, impaired workers.

Indeed, many were surprised at the sudden crackdown on CBD food and beverage sales last year by the California Department of Public Health, which via memo insisted hemp-derived CBD products were banned as a food additive per FDA guidelines

The bill addresses the surprise crackdown by the California Department of Public Health (CDPH), which asserted authority over food sales and stipulated in a memo last July that California prohibits hemp-derived CBD from being added to foods.

Those selling THC-infused culinary and drink items are still technically flouting federal law, as the drug retains its classification as a Schedule I narcotic. The current White House Administration’s U.S. Justice Department continues to adhere to the directive set forth in The Cole Memo, which in 2013, after years of incessant raids on the legal marijuana dispensaries, collectives, doctors and patients, instructed federal prosecutors to eschew pursuit of marijuana organizations and businesses abiding state law where the drug is legal.

What AB 228 Would Mean for CBD Sales in California

Given the dizzying pace of changing marijuana law and policy, cannabis entrepreneurs and ancillary companies need to understand exactly what federal, state and local rules. Working with an experienced cannabis law firm will help ensure you’re up-to-speed and knowledgeable on compliance. Our team of dedicated CBD lawyers will keep your firm abreast of the latest and prepare you for the launch of CBD food, drink and supplement sales so you’re ready well in advance.

It does seem we’re moving closer to that reality, given the state assembly’s unanimous approval of the bill, reflecting broad support.

The law would allow sales of food, beverages and cosmetics infused with CBD extracts and further would prohibit local restrictions on these sales (which is not the case for recreational marijuana).

Still, some have expressed skepticism the state senate will follow suit, given the FDA’s continued hard-line stance against such sales, at least for now. If they do move forward on AB 228, it’s expected California Gov. Gavin Newsom will sign it and the law would go into effect right away.

But again, until the FDA shifts its stance – bringing with it the state health department – cannabis firms would be wise to tread carefully. It’s unlikely larger, national chains will make moves toward investment or sales at least until that point.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

California Poised to Remove Prohibition on Hemp-Derived CBD in Foods and Supplements, May 20, 2019, National Law Review

Even after marijuana and CBD became legal for recreational use among adults in California, Los Angeles CBD attorneys would not have advised clients to take their stash to the skies. Over the last several months as federal laws have eased and state regulatory framework came together, airports like LAX began announcing last year they would allow in-state travelers to pack CBD and marijuana in personal carry-ons as long as it was state-law compliant.

However, travelers – especially those with marijuana, hash or other concentrates – still have reason to be cautious. While state and local officials have jurisdiction at airports through security checkpoints, federal agencies control post-security checkpoint areas.

Federal law still considers marijuana a Schedule I narcotic, subject to severe penalties. CBD oil was downgraded to a Schedule V last year (and was later descheduled by the 2018 Farm Bill). Most traveler’s bags aren’t inspected beyond security checkpoints, but it’s not impossible, especially if one is intoxicated or there is a strong odor permeating through the bag. That probably won’t be an issue with CBD, which is less aromatic than the marijuana flower.

So Can I Bring My CBD Oil to the Airport?

Up until late last year, traveling by air with CBD was probably not a great idea. TSA’s position has always been that its primary focus is safety and security. They’re looking for weapons, not your joints and tinctures. Local police handle calls of illegal contraband from TSA. But once Prop. 64 passed, the exercise became pointless.

Major airports started officially relaxing rules on cannabis last fall, indicating that as long as a traveler is 21 or older and the amounts are within statutory guidelines (no more than 8 grams of liquids like CBD). If you’re flying to another destination in California, you should be fine.

Keep in mind that technically once you’re in the sky, you’re in federal airspace. However, Los Angeles CBD lawyers see it unlikely this will be an issue.

What If I’m Leaving the State or Coming From Elsewhere

Travelers need to consider the laws at each travel point. A number of states still consider marijuana possession a fairly serious criminal offense. Wherever you fly from is where you’re screened by security, so no matter how legal it is where you’re headed, it’s the laws in your departure state that probably deserve the most consideration.

With CBD now formally a Schedule V instead of Schedule I narcotic, it doesn’t pose the same outsized risk as possession of high-THC products, but it’s not something you can wholly ignore. Consider that in Ohio recently, a man was faced felony drug charges for purchase and possession of CBD oil (in his case, to treat anxiety). The judge reduced the charge from felony to misdemeanor, citing the reduced drug classification.

If you have to go through a customs process, consider the answer will depend on that country’s federal marijuana possession laws.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

You Probably Shouldn’t Bring CBD Oil to an Airport, April 2019, The Atlantic

More Blog Entries:

Santa Cruz Sues State to Protect Local Pot Shops, City Oversight, April 10, 2019, Los Angeles CBD Lawyer Blog