CBD – Not So Legal in All 50 States

CBD – Not So Legal in All 50 States

Patients Facing Felonies for CBD Possession

by Kyle Hoelscher, Attorney at Law

I am an attorney and I often see trends in law enforcement.  I knew that I would start getting calls on this subject as soon as I began seeing the slick marketing campaigns by internet businesses regarding CBD products.  Salesmen of CBD products called me to discuss legality, headshop and vape store owners then began calling me to see if they can carry it, and finally, people started calling me because they have been arrested for possession of it.  As an attorney, I have to tell everyone that buying, selling or distributing these products is illegal.  I further tell them that they are likely to face some very stiff punishments if any law enforcement officer finds them with any CBD product.

Now, there is little legal argument to be had, CBD is definitely federally illegal.  We know this because it’s plainly stated that any extract of marijuana is a schedule 1 drug.  We also get regular reaffirmations from the DEA, like the new rule published on December 14, 2016 that clarified current law and created a new tracking number for marijuana extracts.  We know this because we have lawmakers trying to pass laws that would make it legal.  And we know this because people are being arrested and imprisoned in Federal Courts for possession and distribution of CBD products.  In Texas, the water is a bit more muddied, since our legislature never actually put Cannabidiol in any legislation.  As far as I can tell, CBD is illegal because it’s a derivative of Marijuana and its illegal because it’s a related chemical to CBN (which is specifically named).  I would love to have a test case on the subject, the problem is that I would need to find someone who get arrested with 100% pure CBD.  This is something that doesn’t exist in the CBD products being sold.  You see, if it has even a few molecules of THC in the oil, it will test positive for THC on a roadside test and later, on a mass spectrometer.  If any THC exists in the product, the whole thing is a controlled substance and the whole weight of the product is used to determine punishment.

Let me relate two real life cases that are currently sitting in my office.  These are regular people with no criminal histories, just going about their day with the belief that the CBD they owned was legal.  The products they purchased were sold openly in a brick and mortar store.  They say right on the label, “Contains CBD” and “0% THC.”  Looking at the manufacturer’s website, it claims that these products are “legal in all 50 states” and then gives an expansive explanation on their legality.  It talks about hemp and Section 7606 of the Farm Bill.  To any ordinary person, this seems to make a lot of sense.

Along comes Jane Doe.  Jane has arthritis pain and uses CBD to reduce the pain she feels on a daily basis.  Jane went into a local vape shop one day and picked up a refill of CBD oil.  With that errand done, she drives home for an evening with her family.  Halfway home, she is pulled over for having no light on her license plate.  The police officer begins the traffic stop as normal, after all, Jane has a driver’s license and insurance.  But, she also has her CBD oil on the seat next to her.  The police officer spots it and asks to examine it.  Jane didn’t give it a second thought.  To Jane, this product is legal, so she hands it to the officer and tells him its CBD oil.  The officer throws it in a roadside marijuana test pouch and lo and behold, it tests positive for THC.  She is arrested, her car is searched and impounded, she is held on a $20,000 bond, and charged with a 2nd degree felony, punishable by 2-20 years in prison.  Her case is not yet resolved, but she now lives with a curfew, monthly drug testing, and reporting requirements, luckily we were able to keep her from having a GPS tracker on her ankle.  Maybe their website meant legal in 49 states?

John Doe (not related) has a child with a persistent MSRA infection.  This child is 3 years old.  John has put this child on every side-effect laden drug the pharmaceutical companies have to offer.  Finally after all avenues were explored, he was told by doctors that his child will either clear the infection, or die.  At his wits end, he finds some information that CBD could help his child’s immune system fight off the drug resistant bacteria.  So, he goes to a store and buys it right off the shelf.  He administers it to his child and like a miracle, the MSRA clears up soon after.  He kept his child on this regimen until a doctor gave him the all clear.  He too, was driving his car.  He too was stopped for a minor traffic infraction and he also went to jail for possession of a controlled substance.  The reason I pick this case is because at some point he mentions to the police officer that he has given the medicine to his child.  A week later Child Protective Services was at his door.  He temporarily lost custody of his child and is now facing both possession and child endangerment charges.  All of this over something which is supposedly legal in all 50 states.

I end this article with a disclaimer.  I support CBD.  I have directly seen positive effects that CBD has.  I have heard countless anecdotal stories regarding the medical benefits of CBD and many other cannabinoids.  I spend a lot of time fighting so that people can have access to it and I support anyone who refuses to obey unjust laws.  All that being said, I am ethically bound to give competent legal advice based on current law.  Sadly, CBD is currently illegal.  John and Jane Doe both know it now, but they took the hard route.  Don’t let that happen to you, stay safe out there.

–Kyle Hoelscher, Attorney at Law
Bar no. 24066508
Law Office of Kyle Hoelscher
505 S. Water St., Suite 525
Corpus Christi, TX 78401
ph# (361) 765-2907

 

The Truth About Cannabidiol (CBD) Oil Access in Texas

The Truth About Cannabidiol (CBD) Oil Access in Texas

Know the Law!

By Jax Finkel, Executive Director

The cannabis plant has over 113 recognized cannabinoids, with Cannabidiol (CBD) being one of them. CBD oil is generally defined as containing a minimum of 10% CBD and a maximum of 0.3% THC (another cannabinoid found in the plant). Since cannabis is a synergistic plant, it is best to extract this oil from cannabis sativa so that the terpenes and flavonoids can also be included. However, there are some forms of CBD oil that are extracted from industrial hemp.

Texas is in the process of rolling out the Texas Compassionate Use Program, which would allow for state sanctioned Low-THC oil (defined as <10% CBD and >0.5%THC). It is very similar in percentages to CBD oil. This Low-THC oil will only be available to patients who have intractable epilepsy and have 2 doctor’s recommendations. Until the law is changed, only these patients will be served by the program. There is no legal hemp growing program in Texas and therefore CBD oil from hemp is not available.

There are many claims that CBD oil is legal in all 50 states. However, the DEA has come out and stated that marijuana and it’s extracts and concentrates are all schedule 1 drugs. The Controlled Substance Act states, “The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” The DEA has gone on to clarify that “For practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids. Although it might be theoretically possible to produce a CBD extract that contains absolutely no amounts of other cannabinoids, the DEA is not aware of any industrially-utilized methods that have achieved this result.”

Additionally, these CBD oils are not from state-sanctioned programs and not subject to the same standards and testing. In fact, the FDA has put out a warning letters to several companies regarding making unfounded claims regarding their products as well as not having the actual percentages reflected accurately on labeling once they were tested. The labeling issue is backed up by findings published in the Journal of the American Medical Association (JAMA) which found that only 30 percent of the products contained percentages of CBD that were within ten percent of the amount advertised and some products also contained detectable amounts of THC, despite being promoted as THC-free. The FDA has also decided that CBD products are excluded from the dietary supplement definition and also deemed that CBD products are not legal for interstate commerce.

This means that CBD oils are still considered a schedule 1 drug and therefore not legal for sale in Texas. While there does not currently seem to be a massive number of arrests or raids in Texas, there are reports of raids and citizens facing serious time in jail for possession of the extract oil. Proceed with caution, Texans!

Please support our education efforts by making a tax-deductible donation today!

Resources:

Texas Compassionate Use Program Information

Controlled Substance Act Sec 802(16)

DEA Rules – 2016

FDA Warning Letters – Unfounded Claims

FDA Warning Letters – Labeling

Marcel O. Bonn-Miller, PhD – JAMMA 2017

FDA Stance FAQs

Texas Compassionate Use Program Update

Texas Compassionate Use Program Update:

Second License Awarded and Physicians Are Registering

By Jax Finkel, Executive Director

The Texas Department of Public Safety (DPS) has granted the second license to grow, process and sell low-THC oil under the Texas Compassionate Use Program. Consortium Texas was the first company to receive a license and now Compassionate Cultivation joins the list. These companies are based out of Schulenburg, TX and Austin, TX respectively. DPS is statutorily required to grant a minimum three licenses by September 1st, 2017, a date which has already passed.

It is reported that 4 physicians have now registered with the Compassionate Use Registry of Texas (CURT). In order to be allowed to prescribe low-THC oil to patients, physicians must go through the application and registration process. Physicians must have at least one of the following certifications from the American Board of Psychiatry and Neurology or American Board of Clinical Neurophysiology:  Epilepsy, Neurology, Neurology with special qualifications in child neurology, Neurophysiology. Once approved, the physician can prescribe to bona fide patients, whom the physician will add to the registry along with their prescription information. Then the patient or their legal guardian will be able to get the prescription from any licensed dispensary.

While physicians are willing to join the program, some have voiced concerns over the prescription language of the statute and program. Other states with functioning programs use the wording “recommends” due to the Contant v Walters ruling. Dr. Paul Van Ness of Baylor College of Medicine in Houston, an epileptologist recently told the Houston Press, ‘He’s willing to join the program, with a big caveat: “So long as I can do so legally.” … he isn’t sure how the prescription language will be handled, noting that “you pretty much have to be a researcher at a university” to prescribe Schedule I drugs. “I hope they work it out soon,” he said. “I can’t imagine doctors would risk their medical licenses or DEA numbers to do this.” ‘ In the same article, Rusty Payne, a DEA spokesman, remained adamant that a physician could not prescribe marijuana without breaking the law. “Doctors cannot prescribe Schedule I substances,” Payne said.

Resources:

DPS’s Announcement

Austin’s Statesman Coverage of Granting Second License

Official CURT Website

Physician Registration Process

Conant v. Walters, 309 F.3d 629 (9th Cir., 2002)

Houston Press Coverage of Program

Marijuana Criminalization in Texas – At a Glance

Marijuana Criminalization in Texas – At a Glance

by Carlos Caro, Secretary 

Marijuana criminalization in Texas stretches back to El Paso in 1915 with a city ordinance outlawing its use. Ever since then marijuana criminalization has spread in the State of Texas. This, in part, has helped fuel the state in having the largest prison population in the country. It costs the state and taxpayers roughly three billion dollars per year on prisons, and a cost of approximately ten thousand dollars per marijuana arrest.

According to 2015 DPS Arrest statistics, 61,748 individuals were arrested for marijuana possession. Of those 26,756 were between the ages of 17-24. 43%  of those arrested for marijuana possession were in their late teens and early twenties, an age of most high school and college students.

If you take a look at the attached data from the McAllen Police Department, their arrest statistics somewhat mirror DPS arrest data for the state when it comes to the age range of those affected by marijuana criminalization, namely those between the ages of 15-24. What we notice from DPS and McAllen PD data is that high school and college aged youth are being heavily affected by criminalization, which has disastrous effects in the long-term with regards to education and employment opportunities. We also notice from DPS data that marijuana possession arrests account for roughly 52% of all arrests for drug possession, also considering the age demographic that this impacts the most.

Saddling young people with a Class B criminal misdemeanor is detrimental to their future and to a productive, taxpaying, Texas workforce. As a Texan it is frustrating to think that taxpayer money, is being fruitlessly spent in the maintenance of marijuana’s criminalization, but as an educator it is heartbreaking to think of the continued prospect of our youth being shut out from meaningful participation in our Texas workforce by being penalized with a criminal record.

Resources:

Financial Costs – Chris Mai and Ram Subramanian, “The Price of Prisons: Examining State Spending Trends 2010-2015”, Vera Insitute of Justice

Financial Costs – Alexander DeLuca M.D., “Crimes of Indescretion: Marijuana Arrests in the United States Executive Summary

Texas Arrest Data

2016 McAllen Crime Report

 

Introducing Foundation for an Informed Texas!

Introducing Foundation for an Informed Texas!

We are excited to officially announce the launch of our new 501(c)3 non-profit, Foundation for an Informed Texas (FIT)! We are focused on educating the citizens of Texas on current marijuana laws, legislative and elective processes, available legislative options as well as the physiological aspects and socio-economic impacts of cannabis.

FIT now begins our mission to educate the citizens of Texas about current marijuana laws, the legislative process required to change them, and the benefits to society and medicine for doing so. We have put together some informational items on this website and will create and share more content over time. We are also in the planning phase of an education workshop series. Stay tuned for more of our plans!

We have established a wildly qualified team of Directors to spearhead the organization.  They are as follows:

  • Executive Director, Jax Finkel – has been the Executive Director of Texas NORML since 2015 and previously served as Deputy Director for 3 years.

  • Deputy Director, Amanda Berard – is a nurse and veteran who is doing her PhD thesis on veterans and medical cannabis.

  • Secretary, Carlos Caro – is an educator who did his master degree on federal marijuana prohibition.

  • Resource Director, Nishi Whiteley – is a published medical cannabis author and researcher.

  • Treasurer, Lisa Wise – a software guru and account director.

We believe that together we have a sound foundation to expand our existing educational programs and create new opportunities.

However, we need your help to succeed! A key part of this organization is its 501(c)3 status so that we can take tax-deductible donations, apply for grants and more. This will be paramount to completing the next 2 years of our 5-year plan. We need to raise $80k by January 2018 to be able to execute our current timeline plan.

Therefore, the FIT Board invites you to make a inaugural tax-deductible contribution to the Foundation for an Informed Texas and be one of our founding funders! This will get us going and enable us to search out grants and other fundraising opportunities to expand our educational reach. We also would like to request that you share this information with anyone you know who wants to support cannabis education.




You can donate online, or send a check made out to Foundation for an Informed Texas to our registrant’s office at 10226 Missel Thrush Dr, Austin, TX 78750 . Or you can send via Paypal to [email protected].

Thank you for your time and consideration!

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