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Is CBD Legal?

Published April 18th, 2019 in Alternative Therapies, HN4U Blog, What's in the News

By Tammera J. Karr, PhD

Everywhere you look there is some form of edible cannabis, hemp or CBD product. In our supermarkets, we have hemp milk, nuts, flour, and baked goods. So it must be safe and legal right? Well yes and no is the answer.

I had an informative encounter with a CBD vendor at a national conference in Monterey California in 2018 and took my Husband who works for a strict “no Drugs” policy employer. These policies including random drug tests, additionally he has a commercial driver’s license (CDL) with a Hazmat endorsement. These endorsements have incredibly strict guidelines like less than 4 ounces of alcohol in 24 hours, 1 infraction is loss of your CDL for 1 year

CDL licenses are in the hands of millions of individuals all over America, and the numbers of individuals required to do random drug testing are equally high in other occupations.  So, we felt it was essential to learn more and clear up misconceptions about hemp verse cannabis especially with all the supplements and food products hitting the market.  I took my husband into the conference vendor mall to ask about what CBD is and if it was a concern for individuals such as himself.

The company vendor answered all my husbands’ questions and then concluded by saying – “in your circumstances, I would not recommend the use of any CBD product. While it is unlikely you would ever test positive on a drug test, we cannot make that guarantee, and any company that tells you they can should be avoided.”

This was incredibly valuable information for my husband who is also a supervisor. This provided him an opportunity to gain clarification, insight and be able to talk knowledgeably with employees who may have questions about the perceived, or potential risks. None of that would have occurred if we had not taken the time to educate ourselves on the complexity of the issues.

 

Now, what does the 2018 Farm Bill really say about Hemp?

I found the following statement useful in clarifying the concern. At the 2019 International Conference on the Science of Botanicals, a panel of industry, and research attendees laid bare the challenges:

“the recent federal Farm Bill clarified the picture in terms of the legality of hemp farming. It did not, however, clean up all of the regulatory ambiguity surrounding the use of isolated and purified CBD as a dietary ingredient in supplements or as an ingredient in foods.” [1]

The FDA will be looking at the CBD question more at a public hearing on May 31, 2019. In the meantime, the FDA has reiterated that it will continue to take enforcement action against CBD and hemp companies making disease claims.

“an appropriate, efficient and predictable regulatory framework” for the marketing of CBD and other hemp products is in development. [2]

A statement from the FDA Commissioner Scott Gottlieb, MD released April 2, 2019, clarifies part of the question.

“the Agriculture Improvement Act of 2018 (the 2018 Farm Bill). Among other things, this law established a new category of cannabis classified as “hemp” – defined as cannabis and cannabis derivatives with extremely low (no more than 0.3 percent on a dry weight basis) concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC). The 2018 Farm Bill removed hemp from the Controlled Substances Act, which means that it is no longer a controlled substance under federal law.

At the same time, Congress explicitly preserved the FDA’s current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and section 351 of the Public Health Service Act. In doing so, Congress recognized the agency’s important public health role with respect to all the products it regulates. This allows the FDA to continue enforcing the law to protect patients and the public while also providing potential regulatory pathways, to the extent permitted by law, for products containing cannabis and cannabis-derived compounds”.

 

So does CBD contain active THC? Can you get high from it? Is Hemp the same as Marijuana?

 “Marijuana is a different variety of the Cannabis sativa L. plant and contains high concentrations of tetrahydrocannabinol (THC), the chemical that produces psychoactive effects.  In contrast, hemp by definition contains minimal concentrations of THC.”

This statement explains the vendor’s comments above.

Even though neither hemp nor hemp-derived CBD contains significant amounts of THC, until December 20, 2018, hemp was categorized as a Schedule I substance under the Controlled Substances Act, the primary federal criminal law regarding prohibited drugs, alongside narcotics such as heroin. As such, it was generally illegal at the federal level to cultivate, possess or distribute the hemp plant or CBD derived from the hemp plant, although certain inert portions of the Cannabis sativa L. plant (hemp or marijuana), such as the stalks or non-germinating seeds, could be bought or sold. [3]

While the Farm Bill passed in December of 2018, it contained stipulations regarding the classification of CBD over to the FDA, which approved the reclassification of CBD. “The decision, which was approved by the U.S. Food and Drug Administration, will move CBD to the Schedule 5 list, the lowest-level list which includes small doses of medicines such as codeine.)

What are Schedule 5 drugs?

According to the DEA government website:  “Schedule V drugs, substances, or chemicals are defined as drugs with lower potential for abuse than Schedule IV and consist of preparations containing limited quantities of certain narcotics. Schedule V drugs are generally used for antidiarrheal, antitussive, and analgesic purposes. Some examples of Schedule V drugs are cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, Parepectolin” [4]

So the answer is yes CBD is a controlled substance according to federal law.

 

Well so what, I live in a state where it is legal, I do not have to worry.

Random drug testing is increasingly popular in the workplace. The airline, railroad, trucking, pipeline, mass transit, and shipping industries do drug tests under US government mandate. Private companies conduct drug testing to keep health insurance costs down, improve employee productivity, decrease absenteeism, and ensure a safe work environment. A positive drug test is a cause for dismissal in many companies. Most companies that drug test do not hire job candidates who test positive.

 

The most common substances being tested for include the following: [5]

Marijuana

Cocaine

Heroin and other opiates

Anabolic steroids

Methamphetamine

Prescription-type stimulant, sedative, tranquilizer, or analgesic used for nonmedical reasons

Other substances that may be tested for include:

Heavy alcohol use

PCP (phencyclidine)

Hallucinogenic drugs (LSD, peyote, mescaline, psilocybin, and ecstasy)

Inhalants (fumes or gases that are inhaled to produce intoxication such as glues, aerosols, butane, ether, nitrous oxide, and solvents)

In clinical practice, I shared an office with a medical professional who specialized in pain medicine, and many of his clients used medical cannabis to reduce their need for prescription narcotics. This doctor routinely drug tests all of his pain medication patients to ensure they are using them properly and not self-medicating with alcohol or illegal substances. In order to test patients for these kinds of substances, you must first find a reliable laboratory, which meant looking at as many as ten different laboratories and their offered tests. This was much harder than you would think, the results were all over the place, and the physician had to do test samplings on trusted employees and clients to determine which company provided the information he needed.

This herein lies the problem for anyone who may be drug tested, regardless of state laws the current use of CBD is regulated under federal law as a controlled substance. Therefore businesses who receive federal funding or grants must follow federal law, employees who are subject to random drug testing  – teachers, truck drivers, EMT’s, PAs, Nurses, pilots, contractors ….. have no control over what drug test they may be presented with, and cannot risk loss of employment.

Some of these tests will read positive over a poppy seed muffin, or hemp milk, and a CBD food product. While this may sound ridiculous to many, it is a reality.

 

False-Positive Results

Most false-positives may be attributed to over-the-counter drugs and foods that can affect tests. If you take or eat: You could test positive for:

Ibuprofen – Marijuana, barbiturates, or benzodiazepines

Cold remedies – Amphetamine

Hay fever remedies – Amphetamine

Nasal decongestants – Amphetamine

Diet pills – Amphetamine

Sleep aids – Barbiturates

Poppy seeds –  Opiates/morphine

Hemp food products – Marijuana

So the bottom line – do your research on CBD, don’t count on state laws to protect you if you test positive on a drug test while using CBD.

To education and personal responsibility.

 

Sources

[1] Https://www.nutraingredients-usa.com/article/2019/04/15/flood-of-synthetic-cannabinoids-threatens-to-undermine-cbd-market-experts-say  

[2] Statement from FDA Commissioner Scott Gottlieb, M.D., on new steps to advance agency’s continued evaluation of potential regulatory pathways for cannabis-containing and cannabis-derived products

[3] What Does the 2018 Farm Bill Mean for the Hemp and CBD Businesses?

[4] https://www.dea.gov/drug-scheduling

[5] Drug Tests: Don’t Fall Victim to a “False-Positive”

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