Can I get arrested for taking CBD?

A recent incident at Disney World has had a lot of CBD users confused and concerned. 69-year old great grandmother Hester Burkhalter was arrested for carrying doctor-recommended CBD oil on April 15th and charged with felony possession of hashish. This charge is usually used for those carrying vape pens with very concentrated THC oil. Burkhalter told reporters that she uses CBD to ease her pain from arthritis, and her peppermint flavored CBD tincture was labeled as containing 1000 mg of CBD and 0% THC. However, on testing, the substance tested positive for THC.

Authorities made Burkhalter spend 12 hours in jail before releasing her on a $2000 bond. The sheriff’s office stands by the arrest, saying ‘This was a lawful arrest, as possession of CBD oil is currently a felony under Florida State Statute.’ However, the charges were ultimately dropped because their “top drug enforcement priority and focus at the Orange County Sheriff’s Office is to get deadly drugs, like heroin and fentanyl, off the streets of (their) community.”

With the passing of the 2018 Farm Bill, several CBD users believed they were out of danger of legal action. So, what does this case mean for the average CBD user? Can CBD be used for therapeutic, or even wellness or recreational purposes? Let’s dive in.

The legal status of CBD, after the 2018 Farm Bill

The 2018 Farm Bill, hailed by CBD users and manufacturers as a breakthrough, achieved some very noteworthy things:

•   Removed hemp from the definition of marijuana.
•   In listing THC as a Schedule I controlled substance, it created an exception for hemp derived THC.

The legality of CBD may seem confusing. However, it’s really not. Federal law states that any cannabis plant or product with more than 0.3% THC is considered marijuana. It will then be subject to state-specific laws. The bill also specified that each state must first create a plan under which they will monitor and regulate production. This means creating practices for documentation of land usage, THC testing, plant disposal and more. Once the plan is made, it must be approved by the US Department of Agriculture. A year after the approval, hemp can be grown under the guidance of a state or federal regulatory scheme.

The FDA on CBD

While this amendment was seen by many as a long time coming, it didn’t exactly give CBD the green light as they had hoped. On the day the law went into effect, the US Food and Drug Administration (FDA) issued a statement. The statement reminds the public that the FDA still has the authority to regulate all cannabis or cannabis-derived products. The FDA also expressed concerns about claims made without their approval. They did, however, state that they will consider issuing a regulation allowing the use of hemp-derived CBD or THC in dietary supplements.

State laws on CBD

So, hemp and hemp derived products are legal, albeit under the regulation of the FDA. Simple enough, right? Unfortunately, it does get a little more complicated when we come to state laws. As with any product, manufacturers, distributors, and sellers of hemp products must comply with state laws for controlled substances. States that don’t have their own schedules will follow a federal one, but most do have their own. These state laws don’t immediately change with legislation at the federal level. Instead, CBD providers will have to read through state schedules – that are often confusing – and determine the exact legality of CBD in their state.

Is CBD legal in my state?

As mentioned earlier, the legality of CBD seems to vary depending on who you ask. In our 50 states guide, you can clarify the status of CBD in your state. However, it’s important to note that some of the unfriendliest states do have stores that sell CBD products that law enforcement may or may not crack down on from time to time. The DEA still defines CBD as a Schedule I controlled substance, even though it no longer holds that status under the Farm Act. This is why, unless a state has specifically created an exception to the status of CBD, an arrest for CBD can be claimed to be ‘lawful’. Thankfully, more clarity on the status of CBD is due this year.

Getting Arrested for CBD in Florida

It isn’t hard to find CBD in Florida. Dispensaries have popped up across the state, with CBD even being sold in storefronts and smoke shops. CBD infused drinks and pet products are gaining popularity in Orlando too. In fact, even health food stores have CBD for sale. It seems puzzling that a CBD user would be arrested for CBD possession in a state that seems to usually look the other way regarding CBD legislation. That’s because the law in Florida, as it currently stands, is open to interpretation.

Florida Legislature passed a bill in 2017 legalizing an industrial hemp research project. However, they failed to remove the product from the state controlled substances list. Therefore, when the federal government legalized hemp and CBD with the 2018 Farm Bill, it remained illegal in Florida, leaving the status in a sort of limbo. One is essentially at the mercy of their arresting officer’s interpretation of the law. While this particular arrest occurred in Florida, several states are grappling with this in-between legal status of CBD. Floridians have hope, though. A bill is currently under review that will take hemp and hemp-derived products off the controlled substances list, and make them 100% legal in the state. If approved, the bill will go into effect from July 1st, 2019.

CBD Incidents in Texas

Texas has recently come into the spotlight for CBD confiscations ‘skyrocketing’ at Dallas airport, the fourth largest airport in the country. A 71-year-old woman and a 22-year-old student were among those charged with felony drug possession in April. Officers also arrested a third person after a drug-sniffing dog showed interest in their backpack. Inside, they found a CBD vape pen that the traveler claimed to purchase from a CBD store in Dallas. A field test turned up positive for THC.

Right now, officials have warned that carrying CBD through Dallas airport is not worth the risk, but things could change soon. In April, members of the Texas House voted in favor of a bill that would make CBD legal, in fitting with federal law. It is now under consideration in the state Senate.

Can CBD make me fail a drug test?

If you are on probation or have to take a drug test that could lead to being arrested for CBD, then this is crucial to know about. There is also cause for concern when one considers that Burkhalter’s “0% THC” CBD drops tested positive for THC. There are two possible causes for this. Luckily, knowing this information - and using the right products - may help you get a clean drug test and avoid getting arrested for CBD.

Presumptive testing for THC

Agents on the field commonly use presumptive tests to test for controlled substances. These can’t confirm the presence of a substance, but can indicate if it might have been present. Lab tests are expensive and time-consuming, which is why presumptive tests (like the one used at Disney World) are used in the field. However, they often yield false positives. The FDA itself recommends lab tests or ‘confirmatory tests’ that can give clearer results. One study as far back as 1987 says, “If a positive test result will put the patient in considerable jeopardy and the screening result is the only evidence of drug use, confirmatory testing is imperative.” It’s possible that the positive result on Burkhalter’s bottle of CBD could be a consequence of faulty testing. To learn more, read this article about taking a drug test after using CBD.

THC in THC-free CBD Oil

The other concerning possibility is one that experienced CBD users are also aware of: mislabeling. Hemp could contain up to 0.3% THC, which means hemp derived CBD oil could contain that much too. The safest way to avoid punishments for THC use is choosing a brand of CBD that is THC-free. Unfortunately for Burkhalter who did just that, it’s possible that her product contained traces of THC anyway. A booming CBD market with new companies cropping up every day creates an atmosphere rife with cmpetition, cost-cutting methods and marketing claims that aren’t true. The FDA has warned certain CBD providers due to false claims about the potency of their product – some had no CBD at all!

When the steps to ensure that a CBD product is THC-free are expensive and time-consuming, it’s not surprising that many companies decide to skip the steps altogether. To avoid unknowingly consuming THC with your CBD, insist on third-party lab tests from your CBD brand. This is the only way you can be sure of what you’re taking and should be non-negotiable. If a company conducts its own tests, has tests on request, or other factors that indicate a lack of transparency, move on – it’s not worth the risk. It could also be worthwhile to browse a company’s website and see if they’ve shared details of their manufacturing process. For instance, Hempure puts all of its CBD through a chromatography process to remove even the smallest traces of THC. The information for all of it is readily available on the website so users can make an informed choice.

What are the odds?

As things stand right now, the answer to ‘Can I get arrested for taking CBD?’ is probably not, but use it with caution. Good knowledge of the legislation in your state will help you make a better choice. In most cases, CBD oil that is confiscated or that leads to an arrest is subjected to a field test for THC first. Be cautious and opt for THC-free CBD oil if you have concerns. The CBD landscape is changing, and soon the answer to this question should be ‘absolutely not!’ To keep up with the latest in hemp and CBD related legislation, keep checking back here for more.