Ohio is one of 33 states, along with the District of Columbia, to permit the medical use of cannabis with a doctor’s recommendation, but is not among the 11 states (plus DC, and soon Illinois come 2020) to legalize recreational use. It is, however, one of the 50 states filled with people and lawmakers who don’t have a very clear understanding of CBD; from what it is to where it comes from, how it’s regulated, and what laws apply.
CBD Isn’t THC: What You Should Know
Misunderstandings about CBD are pervasive, and they’re due in part to the patchwork of legislation and legal grey areas which have risen from the federal government’s long-standing prohibition of cannabis. Though marijuana is recognized as a safer alternative to dangerous opioids, and a potential treatment for many conditions of the body and mind, it’s still a Schedule I Drug – on par, in the U.S. statutes, with heroin, codeine, fentanyl, and other opiates.
While this classification is of the biggest reasons why remnants of refer madness rhetoric still remain, it’s also a big reason why lawmakers and law enforcement have had such a difficult time creating and enforcing cannabis-related laws, including those which address things like marijuana DUIs and legal limits, medical marijuana, and production.
Of course, CBD has a place on this list, but it’s important to first know what CBD is.
What is CBD? Cannabinoids & Cannabis
Cannabis is a flowering plant, and it’s been cultivated and used for thousands of years and for many purposes. It’s also referred to as hemp, which has long been used for its fibers, seeds, oils, and leaves.
- Cannabinoids – Cannabis has more than 100 cannabinoids, which are chemical compounds that act on receptors and naturally produced molecules in the brain.
- THC – Tetrahydrocannabinol (THC) is the most well-known cannabinoid in cannabis, and its primary psychoactive compound.
- CBD – Cannabidiol (CBD) is another cannabis cannabinoid, but it doesn’t have the same psychoactive properties as THC (meaning it doesn’t produce a “high”). Its therapeutic uses include the treatment of epilepsy, chemotherapy symptoms, anxiety, brain injuries and cognition, movement disorders, and pain, among many others.
CBD and the Law
Though CBD doesn’t have the intoxicating effect of THC and is part of growing research, its legal status is hazy at best. While there are various rules and exceptions, CBD’s legal status generally depends on where it comes from:
- Marijuana – CBD derived from marijuana is illegal under federal law;
- Hemp – CBD extracted from hemp or another lawful source, is legal. The Agricultural Improvement Act of 2018 (Section 10113) defines hemp as all parts of the cannabis plant (specifically the sativa genus) if it has a THC concentration no more than .3% by dry weight.
This is where much of the confusion stems from, and it has to do with the fact that THC and CBD, generally, both come from cannabis. However, federal law makes a distinction between marijuana (cannabis that has THC and gets you high) and hemp (cannabis that has .3% THC or less and doesn’t get you high).
While THC and CBD both come from the same plant, only CBD derived from cannabis plants which meet the federal government’s definition of hemp (.3% THC or less) are legal. Here are a few additional things to know about CBD and the law:
- CBD (from marijuana) is federally illegal – CBD extracted from marijuana, the flowering cannabis plant, is illegal under federal law, and is a Schedule I controlled substance. It generally cannot be prescribed, has not been approved as a dietary supplement, and is prohibited from interstate transportation.
- CBD is approved for epilepsy treatment– While it’s a controlled substance under federal law, an exception exists for marijuana-derived CBD approved by the FDA for treatment of certain rare forms of childhood epilepsy (under the brand name Epidolex). The FDA approved CBD for such purposes in 2018, and rescheduled Epidolex as a Schedule V (5) controlled substance so it can be sold by pharmaceutical companies.
- CBD has been approved by many states for use by doctor recommendation – Laws passed in 16 states allow for the use of CBD products with a physician’s recommendation, rather than a prescription. States with comprehensive medicinal laws (like Ohio), don’t restrict the THC content of CBD products recommended by doctors, and many have dispensaries which offer strains with high levels of both THC and CBD.
CBD has become widely available in Ohio and a number of other U.S. states. Products range from CBD oil, which can be vaporized or topical, CBD flower, and edibles and tinctures to balms, lotions, sprays, pet treats, and everything in between. The key distinction to these products, and the extent to which they’re regulated, is whether they’re derived from hemp or marijuana.
OHIO's New Hemp / CBD LAW
CBD crime isn’t a common term, but the lesser-known cannabinoid can potentially expose people to criminal charges, and in some cases very serious state or federal crimes that carry major penalties. While you might be able to find CBD in liquor stores, head shops, and health food markets (and even CVS and Walgreens in some places), these products must be derived from hemp, and must comply with applicable state laws and regulations.
In Ohio, those regulations haven’t been very clear thus far - but a new law has changed Ohio's stance on hemp and CBD.
LEGAL UPDATE: The Ohio Legislature has worked extensively to clear up confusion by pushing for clearer laws regarding hemp / CBD cultivation, production, and sale. On July 30, 2019, Gov. Mike DeWine signed Senate Bill 57 (SB 57) into law, and immediately decriminalized hemp in Ohio, and opened the door for more robust CBD legislation statewide.
Though there are still administrative issues to iron out, SB 57 accomplishes a few important things. For example, the measure:
- Decriminalizes hemp in Ohio: The law allows Ohio farmers to grow and process industrial hemp, which could bring new industry to the state;
- Creates a licensing system for hemp growers / processers: SB 57 Establishes a licensing structure for farmers who want to cultivate hemp. Licenses will also be required to process hemp and in some matters involving research facilities.
- Allows retailers to sell hemp: SB 57 allows retail stores to sell CBD products, as long as they are derived from hemp (meaning they contain less than .3% THC), and have been properly inspected and texted by the Ohio Department of Agriculture (which will ensure accurate labeling of CBD products).
- Assigns leadership: Under the law, the Ohio Department of Agriculture will have authority to create rules for the state’s new hemp program, and for requesting necessary funds to operate it – estimated at roughly $12 million for testing labs and hiring of technicians, the department says.
- Promotes Research: The law includes provisions which provide colleges and universities with an opportunity to cultivate and process hemp for research purposes (without a hemp cultivation / processing license required for farmers and retailers). Qualifying institutions much submit a University Hemp Cultivation and Processing Research Application to the Ohio Department of Agriculture (as authorized by ORC 928.02) to have research projects approved.
Ohio’s new hemp and CBD law is a major step that could pave the way for a new industry, and more support for CBD and marijuana legalization across the board. At the federal level, the FDA is also reviewing comments from the hemp industry and other advocates as it considers a new stance on federal regulation of hemp.
Is CBD Illegal in Ohio?
- CBD retail in Ohio –Although the Ohio Pharmacy Board previously held all marijuana products (including CBD) may only be sold by state-licensed businesses, the new measure allows non-dispensary stores to carry hemp-derived CBD (less than .3% THC). Retailers, and anyone dealing with hemp / CBD, must be licensed by the Ohio Department of Agriculture. Selling marijuana-derived CBD products, or selling any CBD product without a proper license could come with consequences for retailers.
- Cultivation / production – States like Ohio, Kentucky, and Indiana have seen explosive growth in hemp sales thanks to businesses and product manufacturers behind CBD products. Still, marijuana cultivation is a crime under Ohio law and federal law. Hemp cultivation is permitted with proper licensing from the Agriculture Department, but those who run afoul may face charges for a controlled substance felony, loss of hemp processing license for 10 years, and other potential penalties, depending on the circumstances.
- Transportation / distribution – Manufacturers, distributors, and retailers that ship and transport CBD products across state lines (in violation of federal law) risk criminal liability and potential penalties. Interstate commerce of hemp-derived CBD products was permitted by the 2018 Farm Bill, but they still fall under FDA oversite. In Ohio, the Department of Agriculture will make rules regarding hemp transportation within the state as the details of the new law are developed.
- CBD & Drug Tests – Hemp-derived CBD, as well as some strains of low THC / high CBD marijuana, may not have enough THC to make a person objectively “high,” but they could have enough to raise questions when the presence of any THC results in a positive drug test. With implications for probation violations, DUI / OVI, drug crimes, and other criminal charges, it’s an issue the courts will need to figure out should defendants challenge positive marijuana drug tests on the basis that they only consumed CBD from hemp, or low-THC CBD marijuana.
Friedman & Nemecek is a Cleveland-based law firm known for representing the criminally accused, including those charges with federal crimes and various drug offenses. Contact usto discuss a potential matter.