CBD arrests are on the rise despite loosening federal regulations on industrial hemp. For the most part, CBD consumers can easily purchase CBD products through medical and recreational dispensaries or delivery services, upscale boutiques, online CBD retailers, and, now, major drug stores like Walgreens, Rite-Aid, and CVS. The sheer magnitude of CBD products and their mainstream appeal create confusion over CBD's legality.
CBD is a non-intoxicating compound found in cannabis and hemp plants. Both varieties are derived from the cannabis plant. While cannabis can reap mind-numbingly high amounts of the psychotropic THC compound, hemp plants produce only trace amounts of the mind-altering substance. The close similarity in look and the lack of education on the difference between cannabis and hemp has led to an increased number of CBD arrests.
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What are People Getting Arrested For?
CBD arrests can happen to anyone involved in the CBD market, from buyers to retailers to distributors that handle CBD products. Even grandmothers who take CBD to try to relieve minor aches and pains have been arrested for CBD possession. While these cases are rare, the patchwork of legislation across states strikes fear in people that depend on CBD.
Buyers
Senior citizens are one of the fastest growing groups of cannabis consumers, but they've also been targets of arrests. In April 2019, 69-year-old grandmother, Jordan Burkhalter was arrested at Disney World after security guards found CBD oil in her purse. Despite having a legal recommendation, law enforcement decided to test if the product really contained zero THC. After a negative first result, the officer re-tested the product to get a positive result.
Burkhalter was detained for more than 12 hours, charged with a felony, and had to post a $2,000 bond. Although law enforcement chose to drop the charges, Burkhalter's lawyer suggested they may sue for "illegal detention, false arrest, and a violation of her rights." Burkhalter was lucky compared to other CBD arrests.
Retailers
Retailers are having a tough time selling CBD without fear of reprisal from local law enforcement. In December 2018, a son and mother from Nebraska were arrested after opening a CBD store. Although the owners were warned beforehand, they opened the shop anyway because nearby stores sold CBD products too. In Nebraska, marijuana is defined as all parts of the cannabis plant, including compounds like CBD. The charges were later dropped, but the store temporarily closed causing financial loss and other disruptions.
Texas has also seen its fair share of CBD arrests among retailers. In March 2019, Duncanville police raided two stores that sold CBD products. Amy Wazwaz's tobacco shop was one of the stores affected. Although no arrests were made, police did seize tens of thousands of dollars worth of CBD products.
Distributors
Truckers that are tasked with delivering large loads of industrial hemp are also facing collateral damage from the contradictory federal and local laws on CBD. The industrial hemp in trucks may be federally approved, but law enforcement isn’t properly trained and doesn't have the right equipment to tell the difference between marijuana and hemp.
For example, farmers in Oregon may send their industrial hemp through states like Idaho and Oklahoma that are notoriously known for CBD arrests. Sometimes, truck drivers are arrested by local police for drug trafficking even though most CBD contains no THC or minimal THC that won't cause psychotropic effects.
In February 2019, an Ohio traffic stop by state highway patrol led to the arrest of two men who were transporting 7,040 liquid ounces of CBD oil, which had an approximate retail value of $165,000. A patrol drug-sniffing dog alerted officers to the vehicle where they proceeded to perform a probable cause search. Both men were charged with a first-degree felony and could face 11 years and a $20,000 fine if convicted.
Shoddy Field Tests
The tools that law enforcement uses to test suspected marijuana products are not effective at differentiating between CBD and THC compounds. The cannabis legalization wave has left field test technology in the dust. As a consequence, many CBD users, retailers, and distributors have been detained and falsely tested positive for cannabis. Many tools and government-run labs are not able to measure the exact amount of THC in a product.
Hemp-derived CBD and marijuana both contain cannabinoids derived from the cannabis plant. Law enforcement could mistakenly identify hemp or a hemp-based product as a dangerous substance due to ineffective field tests. In states like Virginia, a CBD user could be arrested for possession based on a field test.
Some testing labs have grown wise to the rampant false positive testing. A state lab in Virginia announced it would stop testing CBD products and begin developing a test that would quantifiably measure THC content and CBD in products other than oils. Current testing only gives a vague assessment of CBD and THC content without exact quantities.
Why Are CBD Arrests Happening?
CBD arrests have increased largely due to a lack of regulatory oversight, conflicting local laws, and an influx of CBD products and widespread accessibility. Federal agencies and states have been slow to govern and set standards for CBD products. CBD products can market themselves as containing no THC, when, in fact, there is some THC in the product that will show up on a field test or attract a drug dog.
Farm Bill 2018
The 2018 Farm Bill legalized the production of hemp and any cannabinoid derivatives including CBD and THC, as long as the THC percentage is under 0.3 percent. Hemp was removed from the controlled substances list. The 2014 iteration of the bill allowed universities to research hemp under a pilot program if the state allowed it. This expansive law was a boon for many but left the CBD market without a regulatory framework.
FDA
The Food and Drug Administration (FDA) has not yet created guidelines for CBD in food, drinks, or supplements. In lieu of clear guidelines, the FDA sends out warning letters to CBD companies that make unsubstantiated health claims. Just this month, the FDA held a hearing on CBD to put regulations in place.
Without federal regulations, CBD consumers have to rely on the company's assertion on the cannabinoid content of a product. Sometimes, products can be mislabeled leaving unsuspecting users open to prosecution if they are caught in possession of a product with a THC level over the legal limit. In some cases, there is no differentiation between CBD and THC when it comes to arrests.
Conflicting State Rules
Some states like South Dakota and Idaho have laws that state hemp is illegal. New York and California prohibit CBD in restaurant food and drinks, albeit, consumers can buy CBD topicals in health food stores and tobacco shops. Colorado, however, gives free rein to CBD in coffee, cocktails, and other food in the state. Missouri allows CBD to be infused into alcoholic beverages if the CBD has no THC in it.
Texas, Nebraska, and Ohio have even gone the lengths to arrest people in possession of CBD. Texas, especially, has seen an uptick of CBD arrests. Although people can buy CBD products in brick-and-mortar locations, state law can charge those in possession of minute amounts of THC with a felony. Austin police view CBD with less than 0.3 percent THC as legal, while Tarrant County openly states they will prosecute anyone in possession of CBD, unless the person is suffering from intractable epilepsy.
TSA
The Transportation Security Administration (TSA) has waffled on the issue for years, but recently they updated their "What Can I Bring" policy to allow hemp-derived CBD or FDA-approved products on planes as long as they meet the Farm Bill's regulations. The new policy is an improvement on the previous ban on marijuana and hemp-derived products.
The TSA has not listed how it intends to implement this policy or ensure the product meets all regulations. TSA cites the approval of the seizure medication Epidiolex prompted the policy reversal.
Should You Be Worried About a CBD Arrest?
The majority of CBD users and retailers won't get busted for CBD, but there's always a possibility, especially if the CBD is intended for sale. Most of the time, law enforcement isn't looking for your stash of CBD flower in a backpack or a grandmother's CBD topical in her purse. It's imperative to understand the local laws on CBD and avoid areas that ban hemp.
CBD arrests are rare, but they showcase the precarious legal position of hemp-derived CBD. For now, distributors rely on lab certificates to prove their CBD is legal when detained, but more validation and regulation is needed to ensure innocent people stay out of prison.
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