Confusion Over Cannabidiol: Is CBD legal? It depends who you ask

The cannabis chemical CBD is for sale all over Southwest Florida in a variety of products. Driving down U.S. 41 in Fort Myers, you can’t miss all the stores selling the popular hemp product.

Extracted from hemp, CBD (or cannabidiol) won’t get you high, but users say the popular product helps them fight things like pain, anxiety, and insomnia. And you don’t need a medical marijuana card or to go to a dispensary to buy it.

“There’s more curiosity for people to look into this as an option,” Rob Fontano, owner of Cirrus Smoke Shop in Fort Myers, said.

He said he’s been selling it for about a year.

Jimmy Java, owner of Jimmy’s Java, just started selling the hemp-based compound at farmer’s markets, adding it to his coffee.

“That’s what made us get into it is, the market demanded it,” he said. “And we can’t keep it on the shelves.”

But during this WINK News investigation, we found the soon-to-be multi-billion dollar industry has its issues.

For starters, the state of Florida says it’s not legal, writing in an email: “At the present time, CBD products are not legal for sale in Florida.”

So how did it end up for sale on nearly every street corner?

CBD in a Legal Gray Area

“There are more questions than there are answers,” said Pamella Seay, attorney and Florida Gulf Coast University marijuana law professor.

Seay said it’s all up to interpretation.

“The law is in a state of turmoil, we really do not know what is legal or not legal within the framework of both state and federal law,” she said.

It’s unclear, in part, because last December federal lawmakers made it legal for states to create commercial hemp programs as part of the 2018 farm bill.

Lawmakers also redefined hemp, taking it off the list of Schedule I drugs, under the Controlled Substances Act.

WINK News received this statement from the Drug Enforcement Agency (DEA):

“With passage of the 2018 farm bill, any part of the marijuana plant (including seeds, derivatives and extracts) that have a THC concentration of no more than 0.3 percent THC are now defined as “hemp” and accordingly, do not fall under DEA’s purview. Therefore, if CBD came from a “hemp” plant (a plant with less than 0.3 percent THC) it would also not fall under DEA’s purview. Most CBD is less than 0.3 percent THC.

Please note that I am saying “not under DEA’s purview” instead of “legal.” That is deliberate. CBD may still be “illegal” depending on local or state laws, and depending on what you are doing with the CBD you may fall under FDA’s jurisdiction (for example if you are purporting it to be a medicine or cure diseases). But if it is below 0.3 percent THC, it is not in DEA’s purview.

Also, just as a side note, if the plant is 0.3 percent THC or ABOVE, it is absolutely DEA’s purview and is still illegal. That would legally be considered marijuana which is still an illegal Schedule I controlled substance just as it always was.

Anyone distributing products containing 0.3 percent or more is breaking federal law and could be subject to prosecution.”

Sounds like a green light for CBD, right? Not so fast.

“The answer is maybe or maybe not,” Seay said. “I do believe that business owners may be taking a calculated risk.”

It’s a risk some businesses are clearly willing to take.

“If you don’t have specificity in the law, how do you enforce that?” Seay said.

When WINK News checked back in, both business owners said they make sure their CBD vendors follow federal laws according to the 2018 farm bill, and they’ve been in touch with local law enforcement.

“Their position was as long as these products are tested properly and these products do not exceed the legal limits and do not contain anything synthetic or illegal, that they’re ok with it,” Fontano said.

Jimmy Java told WINK News his product was mistakenly pulled from the Marco Island Farmer’s Market by city workers, who reported him to the Collier County Sheriff’s Office. He’s since returned to selling it there.

“They called the sheriff’s department and sheriff’s department said, ‘no it’s not illegal,” Schillreff.

So, they don’t plan to close up shop anytime soon.

WINK News reached out to Lee, Collier, and Charlotte County Sheriff’s Offices on this issue, see their statements at the bottom of this article.

In the meantime, what’s being done to clear up the grey area?

The Florida Department of Agriculture told us it’s working on creating a statewide hemp program. Once lawmakers pass a bill and it is approved by the USDA, CBD will officially be legal in for sale in Florida and highly regulated so that consumers can feel more comfortable buying it.

Lack of Regulation

The issues don’t stop with legality. The CBD industry is also mostly unregulated and experts say there needs to be more research on its effects.

But that hasn’t stopped people from buying it.

“A lot of people come in and want to be diagnosed but obviously I’m not a doctor,” Fontano said.

Because the health benefits are mostly anecdotal, FGCU neuroscientist and drug expert Martha Rosenthal said the stories can be misleading.

“I think sometimes people lean towards, ‘it cures everything! You know it’s going to make my hair grow in thicker and it’s going to cure all forms of cancer.’ and of course, that’s not true,” Rosenthal said. “We need more research to find out exactly what it does, we need some clinically controlled studies.”

Still, consumers are willing to try it.

“If this can help me, I’m all for it,” said J.D. Call, who bought CBD-infused coffee from Jimmy’s Java. He said he suffers from back pain.

Jimmy Java said he’s seen success with people of all ages.

“We thought this was going to be something that was aimed at hipsters, the younger generation, kids,” Java said. “The cohort that’s actually buying this is 50 plus.”

He said the biggest reason is for fighting pain.

“I’m old enough to have creakiness in the morning,” said Mary Smithe, a mother and grandmother who admitted she’s interested in seeing what the CBD can do to help.

But without any regulations or industry standards in place, it can be hard for consumers to know what they’re getting.

“You’re buying something and you don’t know what you’re buying,” Rosenthal said.

One nationwide study found roughly 70 percent of CBD products bought online didn’t have what it said on the label.

“It had less, some had more, some had none, it may have pesticides, it may have mold,” Rosenthal said. “You don’t know because it’s not regulated.”

The only drug with CBD in it that the Food and Drug Administration (FDA) has approved is Epidiolex, which treats epilepsy in children. All other forms of CBD are not regulated by the FDA.

Read the FDA’s statement on the passage of the 2018 farm bill.

With so little quality control — how can you find the real thing? Do your own research.

Rosenthal recommends only buying brands that do third party testing or offer batch numbers to look up exactly what’s inside.

“It’s a free for all right now. And there are good companies, go to one of them,” Rosenthal said.

Both the businesses included in this story told WINK News their products have been properly vetted.

Sheriff’s Office Spokesperson’s Statements:

Lee County:

“According to the Florida State [Statutes] CBD oil must derive from a hemp plant and contain less than 0.3% of THC to be considered a legal product.

“The Lee County Sheriff’s Office enforces the law; as long as no laws are broken we do not have anything to say to businesses selling lawful products. When businesses do not comply with the law, we begin an investigation.”

Collier County:

“The sale of items containing CBD oil is a gray area at this time and we are monitoring the legislature for further guidance. In the meantime, we will investigate any complaints of product that someone suspects may not be in compliance with the law.”

Charlotte County:

“The Charlotte County Sheriff’s Office Narcotics Unit monitors drug activity within our community, conducting thorough investigations that frequently lead to search warrants and arrests… Although we have not received complaints from anyone who experienced a negative reaction to a CBD product purchased in Charlotte County, it is still something we caution the public about using due to the publicized safety concerns about regulation and oversight of THC levels in the product. As with any illegal drug, the unknown about where it was produced and what it contains is very dangerous. We will continue to work with businesses on education and enforce the law when and where applicable.

“As far as new businesses inquiring about licensing to operate, they would be referred to the county.”

Reporter:Sara Girard
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