By: As reported in various media, on January 24, 2019 a trucker got into some hot water when he and his big rig were passing through Idaho en route to California from Oregon. In going through a weigh station and having his cargo inspected, state police didn’t take to kindly to what he was transporting.
His haul? Almost 7,000 pounds of hemp.
His customer? A company that intended to wholesale that crop to businesses that manufacture hemp-derived CBD.
Why the fuss? Drug sniffing dogs alerted to his cargo, and field tests indicated the presence (not concentration) of THC. The trucker was immediately apprehended, spent four days in jail, and was freed after posting $100,000 bond.
The company that hired the trucker to transport the product maintains that the load was indeed hemp, that the amount of THC in the hemp was within permissible federal limits, and that it was improperly confiscated. They want it back! So much so, that they’re suing for it; they filed a lawsuit against both the police and the prosecutor.
Everybody seems to be getting into the CBD business as if it’s the new gold rush. It’s estimated that the American hemp derived CBD market could hit $22 billion in the U.S. alone by 2022. It’s popping up everywhere – from café’s to pharmacies, headshops to doctor’s offices. It is administered through creams, tinctures, edibles and vape pens, and is even being given to Fido in an attempt to ease his anxiety or arthritis. CBD oil is even making appearances in food products, from milkshakes to pizza sauce.
But then there’s the trucker who was charged with felony drug trafficking and could serve at least 5 years in prison if found guilty.
This all begs the question . . . . What’s the deal with CBD laws? The answer seemingly depends on who the question is posed to.
Responses are typically not a “grey area”, but rather they run the gamut of the color spectrum. Hemp derived CBD seems to be perfectly fine in certain states and by certain regulators, and black & white prohibited by others (such as by our friends in Idaho).
There is a tremendous difference in the laws between CBD derived from hemp versus CBD derived from marijuana; this article focuses on the former.
At the federal level, the CBD craze was seemingly ignited by the 2014 Farm Bill, which jumpstarted the industrial hemp industry in the U.S., and, again depending on who you ask, permitted the production of CBD derived from hemp at the federal level. I, however, am far from convinced this was the intent of the 2014 Farm Bill or that such CBD production was legalized by the same. In fact, CBD, no matter whether derived from hemp or marijuana has been considered a Schedule I Controlled Substance by the DEA until just recently.
The recently passed 2018 Farm Bill clarified matters when it effectively removed hemp derived CBD from the DEA’s Schedule I Controlled Substance list if such hemp derived CBD meets specific parameters (e.g., no more than 0.3% THC), but there is still a lot of uncertainty concerning the FDA. They seem to consider it a drug that must go through the regular approval process, especially when claims are made about efficacy or when its added to food products.
At a state level, for some states, especially those that allow for recreational marijuana, the mere sale of hemp derived CBD wouldn’t be problematic from their perspective. Others, like Idaho, seem to treat ANY presence of THC, even if within the federally allowed THC limits for hemp derived CBD, as illegal.
Lawyers for the business that got its hemp confiscated in Idaho argue that the state is acting contrary to federal law and is in violation of the commerce clause. Prosecutors in Idaho argue, in part, that the jurisdiction from which the the hemp was obtained has not yet gotten into compliance with the 2018 Farm Bill’s mandates thus falling outside of its protection, and furthermore that Idaho law categorizes substances containing any levels of THC as illicit – even hemp derived CBD with federally permissible amounts.
Again, depends on who you ask. We’ll see how this one plays out in court.
Needless to say, while it’s a booming industry, it is not one without its serious risks, especially as state and federal regulations continue to develop. From criminal prosecutions like the one in Idaho, to civil lawsuits that will inevitably be filed by aggrieved consumers over inappropriate claims of medical efficacy and false advertising, as CBD laws and the hemp industry continues to develop there will certainly be more litigation. Mitigate risk by becoming educated about the depth of the water before diving in head first.
