The legal status of cannabidiol (CBD) has long been complicated. The Agricultural Act of 2014 (2014 Farm Bill) allowed for the cultivation of “industrial hemp”, defined as the cannabis plant that contains less than .03% tetrahydrocannabinol (THC) on a dry weight basis, as long as that hemp was grown pursuant to a state’s guidelines. The 2014 Farm Bill lead to a massive influx of industrial hemp-derived products containing CBD (Hemp-CBD). However, not all states have legalized industrial hemp, making the U.S. a quilt of different rules and regulations on industrial hemp and Hemp-CBD. We’ve written about how state law impacts Hemp-CBD, in regards to where a distributor can sell its products. State law considerations are also relevant to consider when transporting Hemp-CBD.
Consider the case of Anita Maddux. According to Planet Jackson Hole, Maddux was driving through Wyoming en route to Montana to care for her sick mother when she was pulled over for her expired California license plates. It turns out Maddux was driving with an expired license, no insurance, and a 10-millimeter bottle of CBD she obtained from a health store in New Mexico. At the Teton County Jail, police tested the CBD oil for THC. The test results confirmed the presence of THC but the amount of THC. Maddux ended up spending 36 hours in jail before being released on a $1,000 bond.
Recently, the Jackson Hole News & Guide reported that Teton County Deputy Prosecutor Clark Allen intended to dismiss the felony drug charge. However, Allen noted that “I don’t want to send the message that we will not pursue these cases[.] We will pursue these types of cases under the right circumstances. This case just isn’t it.” Allen went on to acknowledge that Wyoming law is not clear when it comes to CBD oils: “Our laws are way behind the curve with the products we’re dealing with[.] A citizen takes a big risk when they possess these products.”
A similar story played out in Cary, South Carolina where Ayman Tamim Nu Mann Alqazah, a wholesaler of e-cigarettes and other similar goods, was charged with trafficking marijuana after a box of CBD-infused gummies he ordered popped open while in transit. The News & Observer reports that box opened while it was transferred from a truck in Florida. Alqazah’s order totaled four boxes weighing 241 pounds. Alqazah now faces drug trafficking charges.
Hopefully, like Maddux, Alqazah’s charges will eventually be dismissed. Regardless of the outcome, Alqazah and Maddux show that shipping CBD products comes with substantial risk. Though many states have legalized the cultivation of industrial hemp in some form, the law surrounding Hemp-CBD remains confusing. Additionally, enforcement action is sporadic. Often, Hemp-CBD products are distributed without incident. Other times, law enforcement will seize Hemp-CBD products to confirm that they do not contain THC and then will either destroy or return the products depending on test results. Other times, as was the case with Maddux and Alqazah, criminal charges are levied against individuals who possess Hemp-CBD.
All of this means that businesses must carefully consider how their products reach consumers. For example, imagine that Hemp Co. is planning to distribute Hemp-CBD. Hemp Co. sources its industrial hemp from a farm in Medford, a small town in Southern Oregon. Hemp Co. has a large order to fill for a natural food store in Billings, Montana. Hemp Co. decides that the fastest and cheapest method of delivery is ground shipping through Idaho. However, according to a 2015 informal opinion from the Idaho Attorney General, the state makes no distinction between industrial hemp and marijuana. Therefore, Hemp-CBD, even without the presence of THC, is not permitted in Idaho. Even though Hemp Co.’s products come from a farmer who cultivates in-line with Oregon’s industrial hemp program (and relevant federal law), that does not insulate Hemp Co. from liability if the shipment is inspected by Idaho State Police. Even if Hemp Co. re-routes to travel through another state, it still would likely have to pass through Idaho, Wyoming, South Dakota, or North Dakota. Though not all of these states are as “bad” as Idaho, none of them have CBD-friendly laws. Paying for air-shipment may seem like a solution, but there are numerous regulations and transit-company polices that Hemp Co. must deal with. All of this requires careful planning and risk management.
I was recently watching an old episode of the TV show Kung Fu, which chronicles Caine, a young American played by David Carradine, training to be a Shaolin Monk traveling the Old West. At one point Caine asks his teacher Master Tae “what is the best way to deal with force?” Master Tae responds, “as we prize peace and quiet above victory, there is a simple and preferred method. . . Run away.” Hemp-CBD distributors should heed this advice and “run away”, to the best of their ability, from states like Wyoming and Idaho.
Transporting Hemp-CBD is inherently risky. CBD businesses should consult with attorneys and logistic specialists to plan ahead and avoid running into the same problems as Maddux and Alqazah.