HEMP & CBD: Do’s and Don’ts before Congress Passes the 2018 Farm Bill

By Sarah Lee Gossett Parrish, Cannabis Lawyer

Contrary to popular belief, technically under the 2014 Farm Bill, CBD products are federally illegal under the Controlled Substances Act (CSA)—a little recognized fact and a status that, in practice, is seldom enforced now. In fact, the Drug Enforcement Agency (DEA) has consistently taken the position that commercial activity concerning industrial hemp and CBD derived from it is impermissible under the 2014 Farm Bill. However, the 2018 Farm Bill should render the DEA’s current position untenable.  

A brief background is necessary to fully understand the current status of CBD products under federal law and what the 2018 Farm Bill will do to change this status.

All CBD products contain THC, but those derived from the industrial hemp plant (a cannabis cousin to marijuana), generally contain less than 0.03%. In practice, most states turn a blind eye to such products; thus, the proliferation of CBD shops nationwide. With the anticipated passage by Congress of the 2018 Farm Bill, CBD will be legal under the CSA, which currently defines marijuana as “all parts of the plant Cannabis sativa L – and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin,” thus including marijuana and industrial hemp within the definition, as both plants fall under the umbrella of “cannabis.” However, there are new protections for hemp-derived CBD in the 800-page 2018 Farm Bill, which Senate Majority Leader, Senator Mitch McConnell (R-KY) symbolically signed with a pen made from hemp.

It is appropriate to include such protections for hemp-derived CBD in the 2018 Farm Bill, given that industrial hemp is an agricultural commodity. At least three early American presidents grew it, and it was widely cultivated as a cash crop until the 1920s, when the federal government made all forms of marijuana illegal. Under the 2014 Farm Bill, Congress authorized state pilot programs to study the cultivation of and commercial market for industrial hemp as a viable agricultural crop. Hence, perhaps, consumers’ confusion about whether or not CBD currently is legal.

Under the championing of Senate Majority Leader Mitch McConnell, industrial hemp legalization was placed in the 2018 Farm Bill. The final language repeals Section 7606 of the Agricultural Act within the 2014 Farm Bill, which mandates that hemp be grown under the direction of a state agricultural pilot program or institution of higher education. It also removes industrial hemp from the CSA’s definition of “marijuana” and from Schedule I.

The 2018 Farm Bill should end the debate over the legal status of industrial hemp (and, therefore, CBD derived from it) under the CSA. All products made from industrial hemp, including CBD oil, will be legal under the CSA if they contain no more than 0.3 % THC.

Even with the 2018 Farm Bill’s passage, however, a second question will linger—is CBD legal under the Federal Food, Drug, and Cosmetic Act? But that discussion is for another blog post!

While there certainly is some scientific and anecdotal evidence of CBD’s effect on anxiety, pain, inflammation, nausea and seizures, and documentation of its value in fighting the opioid crisis, the current gray area of law concerning whether CBD is legal under federal law has discouraged research on its health benefits, and its technically illegal status has prevented federal research dollars from being designated to study its health benefits. Upon passage of the 2018 Farm Bill, this should change, and we should see studies concerning the health benefits of CBD proliferate.

 

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Cannabis Law

COME FLY WITH ME…OR NOT! THE PITFALLS OF FLYING WITH MARIJUANA

By Sarah Lee Gossett Parrish, Cannabis Lawyer

Now that Oklahoma has legalized medical marijuana, can patients take it to Will Rogers International Airport? Can patients carry it on the plane or check it in their baggage? Currently, nothing is posted on the airport’s website about a marijuana policy. However, one thing is certain: once you are in a Transportation Security Administration area in any airport, that area is run by, and under the jurisdiction of, the United States government. Thus, federal regulations apply and marijuana is illegal under federal law. Federal law prohibits possession of marijuana, and this includes possession of it in federal airspace.

TSA’s website specifically provides that “medical marijuana” is not allowed in carry-on bags or in checked bags. See, https://www.tsa.gov/travel/security-screening/whatcanibring/medical.

In Oklahoma, seemingly airport law enforcement, which operates under state law, would adhere to the provisions of S.Q. 788. Additionally, Will Rogers is located within Oklahoma City, and the Oklahoma City Council voted in September to reform ordinances addressing marijuana possession. Those reforms became effective on October 26, 2018, and reclassified marijuana as a Class “a” offense with a maximum fine of $400. Those reforms also conformed Oklahoma City’s ordinances to the provisions of S.Q. 788, so that patients with a state medical marijuana license and those with commercial business licenses issued by the Oklahoma Medical Marijuana Authority will not be cited for marijuana possession if the amount within their possession is within the legal limit for license holders under S.Q. 788.

Across the country, airports are weighing in with marijuana policies. Boston’s Logan International Airport has no rule to prohibit bringing marijuana to the airport, whereas McCarran International Airport in Las Vegas has a formal, airport-wide ban on marijuana possession and has installed amnesty boxes for cannabis products at key locations outside airport buildings. Denver International Airport prohibits marijuana possession anywhere on airport property. Reno- Tahoe International Airport has a sign in the smoking area that reminds people marijuana use is prohibited. LAX’s policy is that what is legal on the streets of Los Angeles is also legal in airport terminals.

In practice, at most commercial airports in states where medical or recreational marijuana is legal, no charges will likely be filed against you if a state-legal amount of medical or recreational marijuana is discovered, because the matter is referred to airport law enforcement and state law applies. However, flying with marijuana is illegal under federal law, as is bringing marijuana into post-security areas at any airport in the United States.

So what is the take-away here? Don’t fly with marijuana. While it may be legal, at least medicinally, in a majority of states now, traveling with it is not. Don’t take the risk. Leave it behind.

Cannabis Law

OKLAHOMA’S MEDICAL MARIJUANA TESTING POLICIES: WHY, WHAT, WHEN?

By Sarah Lee Gossett Parrish, Cannabis Lawyer

If you are a medical marijuana grower, processor, dispensary owner, or a patient prescribed medical marijuana in Oklahoma, you likely agree that cannabis testing policies are needed to ensure that the product is safe, effective, and free of contaminants. Other states where cannabis use is legal—for its medicinal value and also for responsible adult usage—require that cannabis and cannabis products be tested for potency and contaminants to protect consumers’ health and safety. But the scientific underpinnings of cannabis testing continue to evolve, and no laboratory standards have existed long enough to be referenced as best practices. Additionally, there are no federal or international testing standards available, and no readily recognizable experts to guide states new to this business. Indeed, Oklahoma’s SQ 788 and the Board of Health’s Emergency Rules for SQ 788 (7/31/18) with Additional Approved Revisions (8/1/18) do not address laboratory testing, packaging, and labeling requirements.

It is against this backdrop that Oklahoma Legislature’s Medical Marijuana Working Group recently submitted certain laboratory testing recommendations to the Board of Health, in hopes that the Board will set minimum standards for usable medical marijuana grown, processed, and dispensed in the state.

Why? It is a matter of public policy—to protect Oklahoma consumers and businesses. The state’s growing medical marijuana industry, where my clients are trailblazers, will flourish in an atmosphere of safe, effective, legally compliant product. Anything less will spawn lawsuits, and there are already plenty of those.

What? The group recommended minimum testing standards that “usable medical marijuana” received and sold by Oklahoma dispensaries must meet. Under the recommendations, noncompliant product would either be disposed of or returned to the entity from which it was obtained. At a glance, the areas addressed include the following: 1) packaging and labeling; 2) laboratory testing—a vast area encompassing lab accreditation requirements; testing categories; testing requirements for usable marijuana, concentrates, and extracts; testing standards, methods, analyses, chain of custody protocol, and validation; 3) sampling requirements and procedures; 4) recording and reporting of analytical data; 5) retention of testing records; 6) post-testing procedures, including sample retention, remediation and retesting; 7) laboratory quality assurance, control, and inspection; and 8) labeling and record keeping requirements for growers and processors.

When? On May 15, 2019, Oklahoma’s minimum testing standards will become effective if implemented by the Board of Health or enacted by the Legislature. Until then, Oklahoma’s medical marijuana community must be proactive in safeguarding Oklahoma’s medical marijuana patients.

It would be wise and ultimately cost effective to test your own product or retain an existing lab to do so. Document the test results and keep detailed records. This establishes you as a credible supplier of safe product and protects you from potential tainted product claims that cannot be traced to a specific source.

While Oklahoma’s medical marijuana testing policies will likely evolve as the industry grows, the overall goal will remain the same: to provide safe product to patients who benefit from the medicinal value of marijuana.

 

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Cannabis Law