US Customs at DFW is Arresting People and Seizing Their Hemp Products
“One single, small amount of CBD oil that you thought was cool to take on a trip with you, could result in life-changing effects,” says Dallas Fort Worth International Airport (DFW) US Customs (CBP) Port Director Cleatus Hunt Jr. in this recent news article. In fact, according to Hunt, any THC found at the airport can result in a DFW police bust.
Although I was unable to find an official US Customs policy regarding cannabidiol (CBD) on its website, a spokesperson for the CBP recently told a Texas news agency that “CBD oil is considered a controlled substance under U.S. Federal law. Travelers found in possession of controlled substances at U.S. ports of entry can face arrest, seizures, fines, penalties or denied entry.”
Before I discuss how Director Hunt and CBP are dead wrong on this issue, it is important to acknowledge that CBD oil derived from marijuana is illegal under both federal and Texas state law. Traveling with it can, indeed, result in seizure of the product, fines, and even arrest. That being said, not all CBD oil is illegal. That being said, it is absolutely clear that hemp and hemp derived CBD are not controlled substances under federal law (which is what CBP enforces):
Section 297A(1) of the Agricultural Improvement Act of 2018 (2018 Farm Bill) states:
“The term hemp means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (emphasis added)
Additionally, Section 12619(a)(2) of the 2018 Farm Bill expressly removed hemp from the definition of marijuana in the Controlled Substances Act (CSA). It states:
“The term marihuana does not include— (i)hemp, as defined in section 297A of the Agricultural Marketing Act of 1946[.]”
And, Subsection (b) of the above removed tetrahydrocannabinol (THC) from the CSA when it is derived from hemp and in concentrations that do not exceed 0.3%.
All of this is to say that the comments in the news articles I cited above are demonstrably false with respect to hemp-derived CBD oil. There is no gray area. They are simply untrue statements.
Texas law regarding hemp and CBD has a long and mixed history. (You can read a piece of that history here.) Mostly, CBD has been tolerated in Texas, even before passage of the 2018 Farm Bill. As I discuss in this article, passage of the 2018 Farm Bill arguably preempts (ie, overrides) conflicting Texas state law and prohibits a state from criminalizing it. However, even if Texas is authorized to criminalize possession of CBD, Texas is about to pass a hemp law which would decriminalize it under Texas state law. And, CBP does not enforce state law. It is a federal agency charged with enforcing federal laws.
All in all, this appears to be a short term “flare up” by a misguided or overzealous federal employee who is not familiar with the law. My best guess is that this policy will be updated quickly and that the official(s) responsible for it will be reprimanded. In the meantime, be cautious when traveling with hemp products.
UPDATE: I called CBP at DFW and asked to speak with Director Hunt. I was routed to CBP Public Affairs Specialist Yolanda Choates. She requested that I submit my questions in writing. Here is our entire email exchange:
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April 26, 2019/ Updated May 8, 2019
Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.
Rod,
I agree with your statement that CBP is dead-wrong in this instance, and I recently have seen signs that DEA is exhibiting willful blindness to the changes wrought by the 2018 Farm Bill.
I was not paying very close attention to the farm bill prior to its passage in December, but when it passed, I pulled the language modifying the federal CSA definition of marijuana and came to the conclusion that any cannabis plant or product w/ 0.3 THC), once that CBD was extracted and entered into commerce, one could possess it lawfully. (Might be a money laundering violation if the purchaser is aware of the unlawful cultivation.)
I appear to be the only person reading the federal law that way. You and others seem to read it as if the capitalized words I inserted were in the law: “hemp means the plant Cannabis sativa L. HAVING A DELTA-9 TETRAHYDROCANNABINOL CONCENTRATION OF NOT MORE THAN 0.3 PERCENT ON A DRY WEIGHT BASIS,
and any part of SUCH plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis”
To me, without those words, it seems hard to read into that the exempted parts/products have to come from a compliant plant. While you could read it that way, the rule of lenity tells us to read ambiguity in a criminal statute against the government. What am I missing?
Thanks for your comment and insights, Jason. It took me a couple of times to mull over your comment before I fully comprehended it. As I understand it, you are stating that under a plain reading of the definition of “hemp” in the 2018 Farm Bill all of the parts of a cannabis plant that do not contain delta-9 THC levels in excess of 0.3% are lawful, whether or not they come from a “hemp” plant or not. In other words, a leaf from a marijuana plant (as defined in the Controlled Substances Act) is lawful “hemp” if its delta-9 THC levels are not above 0.3%. Assuming that I properly state your argument, I have to disagree. While I do agree that the statute must be read plainly with any ambiguity interpreted in the way that benefits the defendant, the statute is not ambiguous. It defines “hemp” as “the plant Cannabis sativa L. and any part of that plant, including… [list of plant parts]” (emphasis added) The key word is “that”, meaning the cannabis plant at issue that does not have delta-9 THC levels in excess of 0.3%. So, any of the parts (the things that follow the term “including”) must come from “that” hemp plant, which by definition cannot have delta-9 THC levels in excess of 0.3%. In other words, the plant parts must come from hemp, not any cannabis plant.
Rod,
Thanks for the thoughtful response. Here is how the FDA describes things in its current notice of rulemaking, which seems to be more towards my reading:
“These changes include removing hemp from the CSA, which means that cannabis plants and derivatives that contain no more than 0.3 percent THC on a dry weight basis are no longer controlled substances under Federal law.”
Or, they could be intending to paraphrase the hem definition from the bill. Best regards,
Jason
Jason,
It appears that the USDA is paraphrasing. If not, it is not entirely accurate with respect to the statute.
If we assume your argument, namely, that a product containing no more than 0.3% delta-9 THC is lawful, regarding of whether it came from a hemp or marijuana plant, then this means marijuana, which is federally unlawful, can be the primary source material for a product that is federally lawful. So, in addition to the plain language of the statute that I addressed above (ie, the word “that” requires derivatives to be from a compliant hemp plant, not just any cannabis plant) the practical implications of your argument would be to allow a schedule one drug (marijuana) to be the basis for a non-controlled substance (ie, hemp oil).
Rod
Glad I read the comments
Thanks for reading, Carrie.
My apologies for being so late in the conversation, but I am very glad to have read this as well.
Took me a couple of times to wrap my head around some of this, especially at 2:52am, however, I would like to thank you Rod Kight, and all contributors to your blog for the education, sharing of knowledge and insight on cannabis as a whole. I am extremely passionate about our gift from Mother Nature and even more excited to be part of the growing Hemp and CBD industry!!!
Thank you for reading and contributing, Melissa.