Most State CBD laws are unenforceable and moot. (Yes, really.)

In this post, I aim to clear up the confusion between State-specific laws regarding cannabidiol (“CBD”) and the more general laws (both at the Federal and State level) governing hemp and CBD. I have written several posts on the latter, including a summary that you can read by clicking here. This post will address the intersection and relationship between these two, often conflicting, bodies of law. As you’ll see, my conclusion is that a majority of the State specific CBD laws are simply subsumed by the more general laws governing hemp and CBD. To the extent that the State specific CBD laws are more restrictive than the general laws, they are unenforceable. 

As anyone with an interest in the medical use of cannabis knows, CBD has received significant attention during the last few years for its medical benefits. Most notably, CBD has proven to reduce the frequency of seizures for people suffering from some of the most debilitating forms of epilepsy, such as Dravet and Lennox-Gastaut syndromes. It should not surprise those parents who have witnessed their epileptic children experience significant relief from CBD-rich hemp oil to learn that GW Pharmaceuticals, a large British firm, has recently completed Phase 3 clinical trials and intends to file a new drug application in early 2017 for Epidiolex, an “oral pharmaceutical formulation of CBD.” Setting aside arguments about the role “Big Pharma” is playing in legitimizing cannabis (or demonizing it, as the case may be), it is now undeniable that CBD’s health benefits are beyond question and that it will play a vital role in the future of medicine. The only real question is what the legal regime will look like that regulates it.

Currently, there is no single legal regime or unified set of laws governing CBD. To the extent that a regime exists, it is an evolving patchwork of various Federal and State statutes (such as the Agricultural Act of 2014), court cases (like the Hemp Industries and McIntosh cases, to name two), and Congressional funding bills that can be synthesized into what I call the “Source Theory” of CBD legality, which simply means that CBD is legal, or not, based on its source. This post is not about the Source Theory, which I have written about at length. (To read about the general state of CBD law click here, here, here, here, here, and here.) Rather, it is about how State-specific CBD laws, such as “the North Carolina Epilepsy Alternative Treatment Act” in my home state, “Haleigh’s Hope Act” in Georgia, and “Charlee’s Law” in Utah, intersect with and relate to the more general laws governing CBD. For purposes of this post I’ll refer to those general laws that make up the Source Theory as the “General CBD laws” and the various State-specific laws, such as “Haleigh’s Hope Act”, as the “State CBD laws.”

I’ll start by saying that State CBD laws are all different from each other and are all narrowly focused. Additionally, and more importantly, none of the State CBD laws are controlling over the General CBD laws. Currently, sixteen states have enacted laws regarding CBD. These states are: Alabama, Delaware, Florida, Georgia, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin. Utah was the first state to enact CBD laws. It did so on March 21, 2014 by enacting “Charlee’s Law”, mentioned above. The most recent state to enact CBD laws was Delaware, which enacted “Rylie’s Law” on June 23, 2015.

Even a cursory review of the various State CBD laws will reveal a few things. First of all, you’ll notice that they have all been enacted in states that are traditionally “red” from a political standpoint. I do not intend to discuss politics at any depth in this post, and I acknowledge that the “red/ blue” distinction is as much a creation of the media as it is an accurate representation of a state’s polity. That being said, it is not a coincidence that you don’t see State CBD laws in any of the twenty six states that have enacted comprehensive medical marijuana legislation. Not only is there no need for a specific CBD law in a state in which medical marijuana is available, but as I’ll explain in a moment, the act of creating and enacting a CBD specific law is often a buffer designed to prevent real medical marijuana reform. (I recognize, acknowledge, and hope that the upcoming election will change this dynamic and render this point outdated to some degree.)

The next thing you’ll notice is that many of the State CBD laws are named after individuals. Alabama has “Carly’s Law”; Delaware has “Rylie’s Law”; Georgia has “Haleigh’s Hope Act”; Mississippi has “Harper Grace’s Law”; South Carolina has “Julian’s Law.” I’ve already mentioned that Utah has “Charlee’s Law.” All of the individuals for whom these laws were named suffer (or suffered, since some have passed away) from debilitating medical problems. This naming is an explicit recognition by these States of CBD’s efficacy in treating the medical problems for which they authorize its use. And, in fact, with the exception of Kentucky, which allows CBD use for any medical reason so long as it is recommended by a licensed physician, all of the State CBD laws limit CBD use to specific illnesses or syndromes. Some, such as North Carolina, restrict the use to “intractable epilepsy” and further purport to limit access by requiring a patient to participate in a clinical trial conducted by a university.

If you dig a little deeper, you’ll see that each State’s CBD law handles the procedural aspect of the law differently. Some states, such as Kentucky, specifically exclude CBD from the definition of marijuana, rendering it explicitly legal. Other states, like Oklahoma, make the authorized use of CBD legal. (Both of these treatments of CBD are redundant since CBD is already legal in certain circumstances). Finally, other states, such as Alabama, do not change the legal status of CBD at all, other than merely allowing its authorized medical use to be claimed as an “affirmative defense” in a criminal prosecution. Aside from the fact that CBD is already legal in certain circumstances, this is cold comfort for the medical patients who need it.

Some of the State CBD laws actually function on a practical (though minimal) level to govern the use of tetrahydrocannabinol (“THC”), rather than CBD. By this, I mean that some of the State CBD laws specifically pertain to formulations of CBD-rich oil that contain levels of THC that are beyond what is allowed by Federal law under the Controlled Substances Act (“CSA”). 21 USC § 801 et seq. As such, these types of State CBD laws are really nothing more than overly watered down medical marijuana laws and not really “CBD laws” at all. Take, for instance, Georgia’s Haleigh’s Hope Act, enacted on April 16, 2015. It authorizes the use of cannabis oil that contains no more than 5% THC for seizure disorders, sickle cell anemia, cancer, Crohn’s disease, ALS (Lou Gehrig’s disease), multiple sclerosis, mitocondrial disease and Parkinson’s disease. The 5% THC limit is well above what the CSA allows, above the “trace amounts” allowed in hemp products imported from abroad pursuant to the Hemp Indus. cases (333 F.3d 1082 (9th Cir. 2003)), or the 0.3% allowed under The Agricultural Act of 2014 (7 USC § 7606(b)(2)), which authorized states to enact hemp pilot programs. Specifically, hemp oil containing 5% THC is fully and unqualifiedly illegal under Federal law. For this reason, Georgia’s CBD law really amounts to a medical marijuana law governing THC, albeit an extremely limited one. Delaware’s Rylie’s Law, enacted June 23, 2015, is similar in this respect since it allows, under limited circumstances, the use of CBD rich hemp oil containing up to 7% THC.

In fact, many of the State CBD laws appear to have been written and enacted for, among other reasons, political “cover” by politicians opposed to cannabis reform in an effort to shield and buffer against the rapid expansion of medical marijuana laws across the country. North Carolina’s CBD law is a perfect example. The North Carolina Legislature enacted House Bill (“HB”) 1220 on July 3, 2014. HB 1220 has been fully subsumed and made wholly irrelevant by the more recent Senate Bill (“SB”) 313, enacted on October 31, 2015 and amended by HB 992 on July 11, 2016, regarding hemp. Unlike Georgia’s CBD law, North Carolina’s HB 1220 was not written to allow for higher THC levels than permitted by Federal law. Moreover, it is restrictive in the extreme since it only applies to “intractable epilepsy” and is limited to clinical university trials. Most importantly, it was unnecessary to protect its epileptic citizens since legal CBD imported from outside the United States had been legal for over a decade at the time it was enacted. In fact, by confusing the issue of CBD’s legal status HB 1220 arguably worked a disservice to those who can most benefit by using CBD. In many ways, HB 1220 acted as a buffer to real cannabis reform.

All of this, though, is merely informational. The real issue is the relationship between these State CBD laws and the General CBD laws that I have discussed in other posts. As I often explain to my clients, to the extent that the State CBD laws specifically govern CBD (such as North Carolina), as opposed to hemp oil formulations containing THC in levels that are otherwise prohibited (such as Georgia and Delaware), State CBD laws are simply and wholly subsumed by the General CBD laws. To be more blunt, they are irrelevant and unenforceable. Aside from the State specific laws allowing THC at levels not otherwise permitted, State CBD laws are nothing more than toothless creatures, unable to do any harm (or good), except to confuse the issue. When I am asked how a State’s CBD laws play into the General CBD laws, I typically respond by saying that they don’t. An analogy can be made to the evolution of the law in the gay rights movement. Just as gay couples can now legally marry due to recent changes in the law which have rendered more restrictive matrimonial laws moot, the evolving General CBD laws have made most State CBD laws moot. And that is a good thing.

Attorney Rod Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him by clicking here. He has written a book, Cannabis Business Law-What You Need to Know, published by Aspatore in 2015, regularly provides consulting on cannabis business law issues.

Posted October 28, 2016.