IS CBD LEGAL? DEPENDS ON WHO YOU ASK

IS CBD LEGAL? DEPENDS ON WHO YOU ASK

By: Dale Schafer, Esq.

One of the hottest dilemmas, in the cannabis industry, these days involves the relative legality of CBD. The answer involves the DEA, the Farm Bill of 2014, the myriad state laws, on the subject, and a history of ambiguity in America over jurisdiction, and control, over products that are consumed by humans for benefits to health.  Understanding this quagmire is helped by a glance back in history to see how we all got to this difficult place.

The 19th century was dominated by unrestricted capitalism in many commodities, including drugs. Opium had been known, for millennia, as a pain medication and pleasure producer, but it had a dark side. In 1805 the German pharmaceutical giant Merke isolated Morphine from opium. The British were very successful purveyors of opium and forced the poison onto the Chinese in several Opium Wars in the 1840’s. Opium tincture (laudanum) was a widely available medical, or whatever, product in stores across America. The Civil War brought widespread use of morphine, through hypodermic syringes, and it became a drug problem for many veterans of the conflict.

Coca wine was available circa the war, but it was refined to a crystalline product with cocaine hydrochloride. President Grant used the substance to help with the writing of his memoirs before he died from throat cancer. Doc Pemberton concocted Coca-Cola, from coca leaves, to help him treat his morphine addiction. It was labeled a “soft drink” because it contained no alcohol and was believed, in dry Atlanta, to be less harmful than liquor. By the time Sigmund Freud was treated for cocaine addiction, it was becoming apparent that cocaine had a dark side.

Indian hemp was introduced into European society when Napoleon’s troops returned from the near east with hashish. Dr. O’Shaughnessy brought Indian hemp medical products to England in the 1840’s. It’s medical benefits were widely spread through medical societies and products were developed, principally based on alcohol extraction. The second half of the 19th century saw a rapid expansion of cannabis preparations here in America.

Morphine, cocaine and cannabis were not the only substances that were put into “patent medicines”, but they were the big ones. Alcohol was the solvent, and an ingredient, in many of the medicines. As you probably recall, alcohol was becoming quite the moral dilemma as the end of the 19th century approached. Traveling “medicine men” mixed up their special elixirs and sold them to rural citizens. These medical products, along with many other commercially prepared products, eventually appeared in the Sears and Roebuck catalog to be shipped in plain wrapping to your home. When Bayer developed Heroin, in the late 1890’s, the nation was seemingly flooded with snake oil and “addiction” was part of the national discussion about safety in consumer products.

Not to be forgotten was the invention of nutritional products to bring people back to health. Health sanitariums popped up and inventors like Kellogg developed food products (I’m thinking breakfast cereals) to bring people to optimum health. The health claims of these food products were puffing on steroids and their safety was never guaranteed. The food supply was increasingly uncertain and there were few laws to protect consumers. This situation had gained the attention of Congress and when Upton Sinclair published “The Jungle”, about the meat packing industry, Congress passed the Pure Food and Drug Act of 1906 (PFDA). The act required truthful labeling of drugs (morphine, cocaine, chloral hydrate and cannabis) and alcohol and is still considered the beginning of the FDA. However, those products that were not considered drugs were not treated as harshly. This would turn out to be the beginnings of the modern battle between drugs and nutritional supplements.

Over the decade that followed the PFDA, morphine was criminalized. The International Convention of 1912 lead to the Harrison Anti-Narcotic Act of 1914 and federal drug prohibition was off and running. The Treaty of Versailles contained language to prohibit morphine and opium, as did the League of Nations in the 1920’s. States began to enact laws to control poisons and Boards of Pharmacy evolved in all states. As drugs were increasingly controlled, nutritional supplements fought hard to avoid the label of drug. Food, which included supplements, were under the control of the US Department of Food and Agriculture. Consumer safety for foods was viewed differently that the control mechanisms for drugs to protect medical consumers. In the 1930’s Congress added cosmetics to the FDA and today we operate under the FDCA.

America’s attack on cannabis took racial overtones as “marijuana” entered the lexicon of prohibition. When the Mexican Civil War sent refugees fleeing north after 1910, cities and states began to enact prohibitions against marijuana use, but medical use of cannabis was allowed. After alcohol prohibition ended in the administration of FDR, there was increasing pressure for national marijuana prohibition. In 1937, Congress nefariously passed the Marijuana Tax Act and even medical use was made effectively impossible. The Tax Act lasted until 1969 when Tim Leary got SCOTUS to find it unconstitutional. Congress took up the issue of drugs in the Omnibus Controlled Substances of 1970 (CSA). As you know, marijuana was placed in Schedule 1 of that Act and was completely outlawed, except with federal permission. An unfortunate situation that continues today.

In 1994, Congress passed the Dietary Supplement Health and Education Act. This act had jurisdiction over products taken orally for supplementing the health. Claims of health benefits were required to prove their claims or cease advertising the benefits. It also put the burden on the FDA to prove a product, or ingredient was to be treated as a drug rather than a supplement. Ingredients like ephedra lost the battle with the FDA and recently, kratom has fallen under such scrutiny. The industry that produces and markets food supplements is vast, politically connected and well funded. If there is a straight-faced argument to keep a supplement a food rather than a drug, massive political pressure can be brought to bear.

MARIJUANA AS A LEGAL TERM IS A PROBLEM

Prior to Dr. Machoulam’s discovery of THC in the early 1960’s, science did not know what was in cannabis that made it psychoactive. By that time, marijuana was the legal term, used by the federal and state governments, to describe the cannabis plant with psychoactive and medical benefits. Once this cannabinoid was discovered, definitions were developed to distinguish between “marijuana” and “hemp”. THC concentration defined the two terms and the figure of 0.3% THC was the line. Less was hemp and more was marijuana. When Congress enacted the CSA, marijuana was defined to include all parts of the cannabis plant, growing or not, seeds, resin extracted, all salts, compounds, derivatives and all the language thought to cover every possible product from the plant. The CSA also excluded the stalks, fiber, oil cakes made from seeds, but resin extracted from stalks was not excluded. (21 USC 802). The use of the term “resin” is a problem in today’s question about hemp derived CBD.

The cannabis plant produces cannabinoids. Prior to the scientific definition of THC, the term marijuana was all inclusive, even though the non-psychoactive phenotypes were defined as hemp for practical purposes. WWII brought hemp production back for a short period of time, but amnesia was imposed for several decades. Hemp and marijuana were treated effectively the same. They were illegal.

As research continued into the multitude of cannabinoids produced by the cannabis plant, it became possible to isolate the cannabinoids. CBD was able to be looked at separately and investigators began the process to identify which of the cannabinoids were responsible for the many medical effects described by patients. Research also proceeded into the health and nutritional benefits of hemp seeds and the oil derived from them. Dating back, to the 1937 Tax Act, whole seeds needed to be rendered sterile. Seed cake was the base for nutritional and health products. It was also determined that some varieties hemp had relatively more CBD than others. It was possible to extract, and isolate, CBD as a commercial by-product of hemp cultivation and processing. Herein lies the present reality that is creating today’s uproar.

The use of the term “resin” in the CSA demonstrates a desire to prohibit, and control, cannabinoids as a drug. The Farm Bill of 2014 was enacted to allow research projects, under state law, to develop agricultural products from hemp. Several states, most notably Kentucky, have moved forward with increasing commercial production of hemp products. As more acres of hemp are grown, increasing amounts of hemp flowers were available and CBD could be extracted commercially. Over the last two decades, CBD products have become increasingly popular and the source of CBD began to be hemp. Domestic hemp production was not enough to cheaply meet demand so international sources were sought out, think China. Many that were in the CBD trade began to believe that CBD was not a drug covered by the CSA, but an industrial hemp product or a nutritional supplement, outside federal criminal enforcement.

The DEA did not suffer from this belief. In early 2017, a statement was issued by the DEA that clarified, at least in their minds, that CBD was a schedule 1 drug under the CSA and that the Farm Bill did not allow CBD production since it was not an agricultural product, but a drug product. Litigation was started to fight this ruling, but the case was dismissed. In December of 2017, the DEA announced a new category of marijuana extract that covered CBD, and all cannabinoids. As far as the federal government is concerned, CBD is treated like THC, it’s all marijuana. It’s not that simple though.

Many states that have legalized cannabis specifically allow, or restrict patients to, CBD as a state legal medical product. If the CBD is produced within the lawful state, it is only the federal government that would take enforcement action. Unfortunately for the federal drug establishment, there aren’t enough enforcement officers to stop CBD as a medical product. CBD products are seemingly available everywhere and states appear to be inclined to not enforce. This creates a situation that defies understanding, logic or currently workable solutions.

To make matters even more difficult, hemp probably is not the best source of CBD for human consumption. The cannabis plant will extract many toxins from the soil and it takes acres of hemp to commercially produce CBD. The toxins can show up in the CBD and that is problematic for consumer safety because of a lack of testing. Additionally, the cannabis chemotypes that produce high concentrations of cannabinoids, traditionally called marijuana, include a fuller profile of cannabinoids and contain terpenes. Most cannabinoid experts, I’ve talked with, believe that full spectrum cannabinoid products are medicinally superior to hemp derived CBD. This particular topic cries out for research to determine the best source for medicinal products high in CBD.

Now that I’ve said all that, the central question remains difficult to answer. The DEA considers CBD to be prohibited as a schedule 1 drug and not allowed to be produced from hemp, since it’s not considered an agricultural product. If CBD is shipped through interstate commerce, the federal government may decide to take some enforcement actions to send a message. However, for all practical purposes, the feds can’t stop the CBD trade. If your state is allowing CBD production, odd are you’re safer, but not totally safe. How far one goes with CBD production and sales, depends on one’s willingness to accept the risk. Of course, that’s been the theme involved in cannabis production for many decades now. Welcome back to the wild west.  

Advertisements

PUBLIC SAFETY AND REGULATIONS WILL RULE THE CANNABIS INDUSTRY

PREVIOUSLY PUBLISHED IN CANNACONSUMER MAGAZINE

The Governor of Vermont vetoed legislation to legalize cannabis in the state. He stated that he was not philosophically opposed to the idea of legalization however, he wanted to see increased penalties for selling to minors, driving while under the influence of cannabis and an increased commitment to develop taxes and regulations. These themes, along with product safety, are part and parcel to discussions in all states that have legalized cannabis, whether medical or adult use. These issues will continue until the public is comfortable with how the cannabis products are handled, consumers are protected and the public safety is reasonably assured.

 

I want to state clearly that cannabis is not benign. Consumers can have unwelcome reactions to its use. Drivers can have their ability to operate a vehicle, or engage in other dangerous activities, impaired. Use by children is concerning to many policy makers and citizens. Taxing and regulating an illicit market will not be easy or happen quickly. However, these challenges are being overcome in several states and more will follow.

 

Consumer safety is being addressed in many ways. Creating a safe supply chain begins with regulations that control the growing, processing ,transportation, manufacturing, testing, storing, packaging and retail sales. Along the supply chain there are many places and ways to raise money for state and local governments to oversee and enforce the regulations. There are also taxes being imposed that are raising millions, and eventually billions, of dollars in revenue to benefit states and local jurisdictions in many ways. Ensuring that cannabis and its products are safe, requires testing for contaminants including mold, mildew, toxins, heavy metals, solvents and pesticides. Failures of these tests will remove dangerous products from the supply chain and give some level of assurance to consumers.Testing for cannabinoids and terpenes will help educate consumers about their reactions to these different constituents of cannabis.

 

Much is being made about overdoses from cannabis, especially edibles. Retail dispensers, knowing the cannabinoid and terpene profiles, will be in a position to teach cannabis naive consumers on how to consume without going overboard. For experienced consumers, knowledge will provide better understanding of what they are using and what to expect. With time, the public will get more comfortable knowing that it is impossible to take a lethal dose of cannabis. It can be concerning when more is consumed than desired, including children eating edibles, but with time the effects will pass. Poison control calls and trips to the emergence room will decrease as public knowledge increases on the overall safety of cannabis.

 

Consuming and driving is an area creating public safety concerns. No one wants impaired drivers on the roads, but determining impairment is not like dealing with alcohol. Cannabis is used through the lungs, under the tongue, through the gut, through the skin and by way of suppository. It can take from a few seconds to hours to enter the system and its effects can diminish to non impaired levels within a matter of minutes to hours. Unlike alcohol, it enters the fat system in the body and can slowly be metabolized over weeks. Law enforcement is looking for a portable testing device that can determine levels of active and inactive cannabinoids and laws are being passed to establish “per se” impairment levels of THC and its metabolites. However, science does not currently support per se impairment levels. THC, its active metabolite 11-OH-THC and the inactive metabolite THC-COOH can be present at significant levels hours or days after use, but actual impairment can diminish within minutes. Nevada has set a per se limit of 2 ng/ml in the blood, while Colorado is more common at 5 ng/ml. However, a recent Colorado trial resulted in an acquittal at 19 ng/ml. California has managed to keep any per se levels off the books, but millions are being directed to the CHP and major universities to carefully study how officers can determine in the field whether there is probable cause to believe impairment is present.

 

Many jurisdictions allow cannabis to be transported in a vehicle, but consuming in a vehicle is problematic. Even if not impaired, the smell of burned cannabis will bring much unwanted law enforcement attention. Don’t smoke in a vehicle and certainly not while driving. Passengers smoking can also be a problem. Best advice is to treat cannabis like an open container and store it securely where a driver can’t get ahold of it. Don’t break more than one law at a time is what I drilled into my kids heads.

 

Although the illicit market does not check ID’s, the regulated industry will. Selling to underaged people will carry serious criminal consequences. With a physician involved, minors are allowed to use cannabis for medical conditions. Recreational use is another thing altogether and policy makers and citizens do not want minors buying or using cannabis. Expect adult use states to have stiff penalties when it comes to minors. California lowered almost all cannabis criminal sanctions to legal, infractions or misdemeanors. Selling to minors remains a felony and the state will be looking for this. Don’t expect this to change soon so get used to it and don’t do it.

 

I expect more states to put cannabis legalization on the ballot and more legislatures will be establishing regulated, legal cannabis markets. Legal states are gearing up to fight federal intervention should AG sessions move against legal cannabis at the state level. Legal cannabis is not going away and the states will be struggling for answers to the questions raised by Vermont’s governor, plus more. Cannabis consumption will be safer, but the regulations and taxes will be daunting. Keep kids out of the cannabis market. Although not benign, cannabis is relatively safe, non toxic and not poisonous. Do not drive after consuming until you are sure of the effects and expect more per se laws. As Tiger Woods found out mixing drugs can be a problem, so be very careful with using other drugs or alcohol. My family is out there on the roads and I want everyone home safe. Be a safe consumer and a good citizen.

Status Update

I know that it has been awhile, since my last post, and for that I am sorry. However, I have been doing many things to further my understanding, of the California Medical Cannabis and new Adult-Use Cannabis Regulations, as well as establish relationships with local and state agencies.

 

loriajax
Photo courtesy of ICBC

 

I was at the International Cannabis Business Conference, in San Francisco, on Friday and had the luxury of listening to Lori Ajax (California’s Cannabis Czar) speak about the upcoming cannabis permitting process.

We now know that:
1. The State of California is set to begin taking applications, as planned, on 1/1/2018.
2. Now is the time to begin establishing relationships, with your local officials, since it will be impossible to obtain a state permit without local permission.
3. The State has no idea of how the federal government will proceed but they have set themselves up under Obama’s language, which is the best they can do for now.
We have been working to establish relationships with the following local Boards:
Sacramento City, Yolo County, Calaveras County, The City of Coalinga, El Dorado County, Nevada County, and Placer County.
6-things-we-know-about-ca-cannabis-permits
IF YOU, OR ANYONE YOU KNOW, IS THINKING ABOUT ENTERING THE CANNABIS INDUSTRY (IN ONE OF THESE AREAS) AND WOULD LIKE TO BEGIN ESTABLISHING A RELATIONSHIP WITH ANY OF THE ABOVE AGENCIES FEEL FREE TO CONTACT US AT
916-740-2141

Vacation in Hawaii

Travel within the prison industry is called “diesel” and/or “kerosene” therapy. You’re either put on a bus, diesel therapy, or a plane, kerosene therapy. The therapy part is the inside joke for inmates because it’s horrific.

Pahrump Nevada is famous for its “whore houses” and a private prison run by Corrections Corporation of America (CCA). It’s a secure facility which means there are fences with razor wire, no freedom of movement by inmates and entry is through locked and monitored gates. I was removed from my medical solitary room and taken to the area where inmates are processed in and out. Because clothing is not an item that is swapped between facilities, especially private vs BOP facilities, I was given boxers (gray with streaks that I hoped had been laundered), socks that were overstretched and falling apart, cheap throw away slip on shoes and a paper jump suit that was disposable. Then I was sent into a concrete room that was cold, supposedly for germ control, without any comfortable seating, a single open toilet, packed with those of us scheduled to leave, at least a dozen guys, and the door was locked.

I had been unable to communicate with my family since San Bernardino County Jail. No one in the family knew the horrors of prison travel or that I was off to Hawaii. As I sat in that ice cold concrete room, I wondered what my kids were thinking or doing. None knew I was in Pahrump or that I was now being moved. The BOP web site that keeps track of inmate locations does not post an inmates location until the inmate is in a location for a while. How long that recognition period takes is still a mystery to me.

Those of us in the concrete refrigerator are told to line up and get ready to go. We are taken out five at a time, identified, put into leg shackles, hand cuffed to a chain around our waist and put into the box. The box is a plastic device that covers the lock on the hand cuffs so that a curious inmate, on a long travel adventure, can’t manage to unlock them. We were shuffled out to a waiting bus, names confirmed and up we carefully shuffled so as not to fall. When all are loaded up, off we went to Las Vegas airport.

There were several busses at the airport. I watched in amazement as a perimeter was set by men wearing bullet proof vests and carrying automatic weapons. Who in the hell was traveling with us? We waited for about an hour before a plane was pulled in close proximity and guys were taken off one at a time. We were each identified and our shackles and cuffs were removed. We were immediately put back into another set of shackles and cuffs in a box, attached to a chain around the waist. Apparently the jewelry doesn’t travel between institutions, similar to clothing. Climbing the stairs up to a Boeing 737 in shackles is much trickier that maneuvering a couple of steps into a bus. I was seriously concerned I might fall and since I’m a hemophiliac, one of my nightmares would come true; having a bleed in custody.

I was one of the last to enter the plane so I was up front. The seats were standard airplane seats, padded. This was new, my ass would not be on fire in ten minutes. There were six US Marshals, six private security personnel, all men, and a token female dressed in a uniform that sort of looked like a pale PSA flight attendant outfit from the 1970’s. She gave one of those boring seat belt and oxygen mask speeches after we were counted. I asked if we could stand up occasionally and we were all told no. DVT’s anyone? Another asked if we could go to the restroom and we were all told yes, but the door could not be closet, security don’t you know.

We were off to Hawaii. Flight time would be over five hours. We settled in for a long flight with no standing, unless you needed to go to the restroom with the door open. About a half an hour out and a movie was started. Step Brothers, something I had not seen. I particularly liked the testicles on the drum set. The staff began to move around and the “stewardess” went to the galley and began to prepare food. I remembered my anticipation at the In-and Out on the bus ride so I was cautious in my anticipation of being fed. Meals began to be produced and the staff began to eat the crappy airline food. Wait for it… then came the brown paper bags for us inmates. Shit, bologna sandwiches, a piece of fruit and juice in a paper box. Ever tried to put condiments and unwrap bologna to prepare a shitty sandwich, while handcuffed in a box? Of course not, it’s difficult for me to imagine and I actually had to do it. Opening the juice box was also a challenge, especially the part about getting the box up to my mouth with my hands attached to a chain around my waist. I’m a problem solver so I worked the chain up to my chest and voila, I could drink.

The movie, with all the trailers, lasted most of the flight. A guy wanted to use the restroom and was escorted and reminded he had to keep the door open. His complaint was met with an abrupt, “shut the fuck up”. My back was on fire. My blown out discs didn’t do well when I can’t get up and change positions, however, my ass seemed to OK. Our friendly flight attendant got on the mic and told us we were going to be arriving soon so prepare the cabin to landing. WTF? I looked out the window and saw Oahu, a place I’ve been to several times in the past. However, this didn’t seem like it was going to be a vacation.

The plane pulled to a secluded corner of the tarmac and we were taken off, identified and loaded onto what for all intents and purposes, was a tourist bus. It took three busses to hold the 126 guys that had just gotten kerosene therapy to Hawaii. At least a dozen local police cars escorted us off the airport property and several blocked each intersection, with lights flashing, while there were several in front and behind each bus. I had thoughts of one of the Fast and Furious movies where Vin Diesel was busted out of a bus on a deserted highway. Who could possibly be on any of the busses that would warrant all this.

Finaly we arrived at the Federal Detention Center (FDC) Hawaii. We could see the location on the airport tarmac were we had been loaded into the busses and all the security was to drive us around the airport on public roads. The local cops waited in large numbers until armed guards, wearing bullet proof vests, deployed to form a perimeter. A door opened to an underground driveway and the first bus backed inside and the door closed. My bus was the second to enter the building.

We were told to get off the bus and proceed into the building. We were again identified, our shackles and cuffs were removed, and we were sent into a concrete room with wooden benches. There were no toilets so immediately, a guy began to loudly complain he was going to shit his pants if he didn’t get to a toilet, called a shitter. Apparently he was not willing to do his business on the plane with the door open. We were each taken out several at a time to be processed, picture taken, finger prints taken, stripped, given new clothing and back into the holding cell. We were each sent to talk to medical, psych, social services for country of origin and potential gang affiliation and security problems. I had the opportunity to speak with the medical staff about my hemophilia and I was removed to the medical SHU for my protection until the facility could obtain the medicine needed to stop me from bleeding should anything happen. I once again found myself alone in a cell with a bunk, a toilet and this time a shower. At least I could see outside and light could enter. My pineal was feeling better already, but the rest of me was very uneasy.

Next time: Vacation in Hawaii Pt. 2

Create a free website or blog at WordPress.com.

Up ↑