Page 5 - Cannabis News Florida January 2019

Back Cover Story: Shady Legal Status of CBD in the Sunshine State

Continued from back cover.
Hope on the Horizon
state industrial hemp programs, for research purposes. Permissible products derived Take heart. While Florida law remains unsettled, there have been some wins at the
from hemp are limited to those distributed for marketing research, not for the pur- federal level. In May of 2018, based on a 2004 ruling by the Ninth Circuit, the DEA
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pose of general commercial activity . In addition, the Farm Bill expired in issued this internal guidance: “[t]he mere presence of cannabinoids is not itself dis-
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September . Trust me, that hurt me as much as it hurt you; it was like exposing Santa. positive as to whether a substance is within the scope of the CSA.” . In addition in
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Okay, if you have recovered from the Farm Bill discussion, let’s move on to Florida September, a federal administrative judge overturned the U.S. Postal’s seizure of CBD
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law. We will save the regulatory issues raised by the Food Drug and Cosmetic Act 9 products derived from Colorado’s industrial hemp program.
and Epidiolex for another article. In Florida, the medical marijuana laws operate as a So, is my CBD product legal you ask? It depends; the short answer is consult your
carve out from state criminal statutes, meaning any cannabis product produced or attorney.
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sold outside of the regulatory structure is a crime .
Medical marijuana includes low-THC cannabis (“LTC”). LTC is any product Nichole Geary is a government affairs
derived from any part of a cannabis plant that contains 0.8 percent or less THC, that consultant and attorney with Floridian Partners, LLC. and prior general counsel for the
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is dispensed from a medical marijuana treatment facility (“MMTC”) . Florida Department of Health, the agency charged with oversight of Florida’s
Let’s unpack that. First, it is not the end product that defines LTC; it is the source medical marijuana program.
product, which, technically, includes hemp. Second, LTC must be dispensed by an
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MMTC. Finally, the exemption for seeds and stalks does not exist in Florida . Which (1) Karl Etters, Tallahassee CBD Business raided, thousands of dollars in hemp seized, Tallahassee
brings me to another painful revelation. A CBD product sold outside of the medical Democrat, Nov. 20, 2018, https://www.tallahassee.com/story/news/2018/11/20/tallahassee-cbd-dispen-
cannabis program may be illegal in Florida. I know; I know. sary-raided-thousands-dollars-hemp-seized/2068011002/.
Fine. “What about hemp,” you ask? The Florida hemp program is in its infancy. (2) 21 U.S.C. ch. 13 §801 et seq.
(3) https://www.deadiversion.usdoj.gov/schedules/marijuana/m_extract_7350.html
Section 1004.4473, Florida Statutes, enacted in 2017, allows the University of Florida (4) See fn2
(“UF”) and the Florida Agricultural and Mechanical University (“FAMU”) to create (5) See fn3
industrial hemp research programs and tagged the Department of Agriculture and (6) Agricultural Act of 2014, Pub. L. No:113-79 §7606, 128 Stat. 912-913 (2014).
Consumer Services (“DACS”) with regulatory oversight. The statute prohibits the (7) Statement of Principles on Industrial Hemp, 81 C.F.R. § 53395 (2016).
production of commercial hemp products until after two years of pilot program initi- (8) Preamble to the Agricultural Act of 2014, Pub. L. No:113-79, 128 Stat. 649 (2014).
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ation . In April of 2018, DACS promulgated a rule to implement the pilot pro- (9) 21 U.S.C. § 321(g)(1).
(10) Article X, Section 29 of the Florida Constitution; §§381.986 (14); 893.02(3), F.S.
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grams . Currently, both FAMU and UF are in the process of identifying contractors, (11) § 381.986(1)(e), F.S.
and no Florida industrial hemp products exist. (12) § 893.02(3), F.S.
(13) § 1004.4473(6), F.S.
(14) Rule 5B-57.013 F.A.C.
(15) https://www.deadiversion.usdoj.gov/ schedules/marijuana/dea_internal_directive_cannabi-
noids_05222018.html
(16) KAB, LLC v. United States Postal Service, P.S. Docket No. MLB 18-39 (Sept. 21, 2018).

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