Update: a Utah store owner is now the subject of an investigation for selling CBD oil; a spokesman for the Department of Public Safety also asserted that “it’s not legal.”
I’ve seen many stores and companies offering CBD (cannabidiol) oil for sale in Utah over the past year. While quickly spreading in popularity, these purveyors of cannabis derivatives often do not realize that they are breaking the law—and so are the people who buy them.
First, a quick explanation—what is CBD oil? Cannabidiol, or CBD, is a component inside cannabis—it’s a “cannabinoid” molecule much like its more popular counterpart, THC, or tetrahydrocannabinol.
Unlike THC, CBD is not psychoactive; it won’t make you feel “high” or impaired. And like THC, CBD appears to show significant medical benefit for varying conditions.
So why do I say it’s illegal? Well, it is.
Let’s start with the federal government. Congress and the various federal agencies regulate drug possession and consumption under the Controlled Substances Act (CSA). Different substances are placed on different “schedules” that purport to represent their varying degrees of risk for abuse. Cannabis is a Schedule I drug, meaning the federal government asserts there is “no currently accepted medical use and a high potential for abuse.”
The government has placed synthetic THC on a lower schedule; your physician can prescribe pure THC. For some people it helps, and others have an adverse reaction to this substance. (Many find that a natural blend works far superior to this synthetic pharmaceutical.)
As for CBD, some of its proponents argue that because certain hemp can be imported from foreign countries, this low-THC strain is a-okay to manufacture and market—and possess and use. One producer, for example, claims it is “legal at the U.S. federal level because hemp consumer products are legal at the federal level.”
The U.S. Drug Enforcement Administration disagrees. They recently responded, in part, as follows:
“Media attention has focused on a derivate of marijuana that many refer to as ‘Charlotte’s Web’ or ‘CBD oil.’ At present, this material is being illegally produced and marketed in the United States in violation of two federal laws: The Controlled Substances Act (CSA) and the Federal Food, Drug, and Cosmetic Act (FDCA). Because it is illicitly produced by clandestine manufacturers, its actual content is uncertain and will vary depending on the source of the material. However, it is generally believed that the material is an extract of a variety of the marijuana plant that has a very high ratio of cannabidiol (CBD) to tetrahydrocannabinols (THC). Because this extract is a derivative of marijuana, it falls within the definition of marijuana under federal law. Accordingly, it is a Schedule I controlled substance under the CSA.”
You can’t blame people for believing it’s legal when the media helps perpetuate the problem. For example, a news agency in Bismark, North Dakota, emphatically proclaimed that CBD oil is “an all natural product and legal in all 50 states.”
The agency interviewed the manager of a grocery store who said, “It is from the hemp plant and that is different from the medical marijuana plant because of the amount of THC in it. So because it contains less than .3% THC that makes it legal for us to sell it.”
This false information led the same agency to report, just two weeks later, on a law enforcement sting of a tobacco shop in town whose owner now faces up to 40 years in prison for selling these products.
“He tells us he thought everything on his shelves was legal to sell,” the media station reported. They continue:
[The owner] says he’s spoken to all of the companies that sold him the products tested, and they are all outraged over the process and have told him the products were legal for sale, and they will help him in the legal process.
Here in Utah, a local businessman opened shop saying he was “ready to go” in providing CBD oil to Utahns in need. “It has some amazing anti-pain, anti-inflammatory, anti-anxiety benefits, but without any kind of high,” he told the Salt Lake Tribune two years ago. “It doesn’t put you to sleep. It calms you down. It allows you to deal with things.”
Separate and apart from the DEA and the other federal agencies weighing in, the Food and Drug Administration has a problem with business owners like this one who make unverified medical claims about, in this case, illegal substances. A presentation of their enforcement actions made last year specifies that they are concerned:
We can also address the legal claim this way: if CBD oil is legal for everybody, why have legislatures around the country gone to the trouble of legalizing the oil for use by epileptic individuals?
Why did Utah, after significant controversy and compromise, pass a legal program for people with epilepsy to obtain legal access to CBD oil?
This brings us to the second part of the answer, and one that stands independent of the federal law. Assume for a moment that these claims were correct—that the federal government had indeed given approval for CBD oil to be manufactured, sold, possessed, and ingested by people countrywide.
That federal legalization would have no bearing on Utah; the state legislature could still deem it illegal. And it has. Regardless of federal law, Utah has its own Controlled Substance Act, in which we find the following definition (with my emphasis added):
“Marijuana” means all species of the genus cannabis and all parts of the genus, whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
The statute goes on to impose various criminal consequences for the possession of marijuana.
The law does carve out possession of CBD for those involved in an authorized (and limited) research program, or those who have a card from the Utah Department of Health and physician approval for intractable epilepsy. But that’s it.
For everybody else, CBD—like all cannabis—is outlawed in Utah. It doesn’t matter whether the federal government has legalized CBD or not (and they haven’t). There’s another layer of government to deal with.
Law enforcement, for now, appears mostly ignorant of or indifferent toward CBD oil. We have yet to hear reports of manufacturers or distributors in Utah being targeted, or the many Utahns who have been buying CBD products from a variety of stores and websites. But there have been legal problems elsewhere, and Utahns who buy and sell this prohibited product run legal risk, as do all patients using other forms and elements of cannabis.
Of course, it’s ridiculous that a non-psychoactive oil is deemed illegal in the state—or anywhere. It’s also absurd to threaten violence against peaceful people merely trying to relieve a headache or reduce inflammation in their sore back.
This situation is further evidence supporting the case for legalizing medical cannabis broadly in Utah.