IE 11 is not supported. For an optimal experience visit our site on another browser.

CBD, hemp and similar legal products are confusing the police and putting users at risk

The FDA needs to get to work and officers need to get trained so those who use these products don't continue to be wrongly punished.
An industrial hemp plant, which looks very similar to a marijuana plant.Paul Sancya / AP file

When Anuedy Gonzalez was pulled over outside of Amarillo, Texas, on Dec. 6, he was prepared. He handed the highway trooper a lab report showing that the 3,350 pounds of hemp he was transporting from California to New York was perfectly legal under both Texas state law and federal law. But that didn’t keep him from spending Christmas in jail and facing federal drug trafficking charges that carried a potential life sentence.

The lab analysis detailed how the hemp — marijuana’s non-intoxicating but lookalike plant cousin — contained less than 0.3 percent THC (the psychoactive ingredient in marijuana), meaning it’s a legal substance. But the report wasn’t enough to keep the law enforcement officer from arresting him.

It’s not just government officials who are confused — and doling out consequences for using a substance they (wrongly) think is verboten.

Though the charges were eventually dismissed, Gonzalez’s experience shows how confusing and risky it is to work in the industries using marijuana-adjacent products such as hemp and CBD as laws and regulations rapidly evolve — or don’t exist at all. The Food and Drug Administration needs to get to work and law enforcement officers need to get trained so those who use these products aren’t wrongly punished.

And an even larger group of people is currently in jeopardy than those working in the field: people seeking alternative approaches to chronic health conditions by using hemp, CBD and other low-concentration THC products. (Unlike THC, which produces a “high,” CBD (cannabidiol) is a non-intoxicating chemical compound called a cannabinoid that offers a host of potential health benefits.)

It’s not just government officials who are confused — and doling out consequences for using a substance they (wrongly) think is verboten. Take the experience of a school bus driver in Utah who used CBD oil to manage her stress and was fired after a drug screen came back positive for THC. She insists that she only used the non-intoxicating CBD product but tested as though she were using cannabis, which is illegal in Utah and definitely not permitted for school bus drivers. Because there’s little regulatory oversight of these items, it’s possible that her CBD product still contained enough THC to trigger a positive result.

In another case, a California couple trying to treat their daughter’s epilepsy with CBD oil was charged with “severe medical neglect” by the state’s Child Protective Services and temporarily lost custody of her. Thankfully, after the courts reviewed research showing the substance they were using can treat severe forms of the disorder (it’s the first FDA-approved medication with CBD), the case was dismissed.

All this confusion stems largely from these products’ close association with marijuana and the rapidly changing legal landscape surrounding its use. The umbrella species cannabis has a variety of strains, some plants have little THC (most commonly hemp) and others are high in THC (marijuana, or cannabis sativa).

Cannabis sativa is illegal under federal law, though increasingly not under state statutes; byproducts of hemp (such as CBD) are legal to grow, sell and possess nationwide under changes unveiled in the 2018 Farm Bill. That measure removed hemp plants that contain less than 0.3 percent THC from the Controlled Substances Act, and treats hemp like any other agricultural commodity. Some states like South Dakota, however, have opted out of the federal law and prohibit hemp and CBD.

Compounding these complicated distinctions are the scientific and regulatory gaps facing the industry. The chronically underresourced and increasingly toothless FDA has few enforcement mechanisms in place to carry out its mandate: ensuring the products we put into our bodies are correctly labeled and safe for consumption.

In the case of CBD, whether you’re purchasing gas station curiosities or an expensive facial moisturizer, you don’t really know what’s in it. The product can contain more THC than what’s federally allowed, and after frequent dosing can potentially trigger a positive drug screen.

The FDA’s efforts to enforce its CBD rules — mostly aimed at mislabeling and weeding out bogus health claims — have been essentially limited to sternly worded letters addressed to businesses running afoul of marketing guidelines. A 2017 study shows that’s a lot of companies, leaving the FDA with a full plate. The researchers found that nearly 70 percent of all CBD products sold online are mislabeled, “causing potential serious harm to its consumers.”

But companies engaging in sloppy manufacturing or false advertising aren’t the only ones responsible. There’s also a lack of reliable research for businesses and consumers to use. In the case of the bus driver’s positive drug screen, for instance, there’s conflicting scientific findings as to whether, in certain acidic conditions, CBD can break down and convert to THC in the body. (The World Health Organization, for its part, has concluded that there’s no evidence of public health problems stemming from the use of “pure CBD.”)

Daniel Mehler, a Colorado attorney who defended Gonzalez in Texas and is a student of cannabis pharmacology, contends that research has been stymied because of historic prohibitions on cannabis. As a result, knowledge lags far behind the industry’s popularity and health claims made by companies, which research estimates could rake in $20 billion by 2024.

“People are jumping into this industry feet first and consuming unknown quantities of CBD,” Mehler said. “A lot of these products are mislabeled, and there’s no understanding of what the potential long-term health consequences are.”

While scientists pursue answers, the job of law enforcement has become complicated. From a policing perspective, telling the difference between smokable hemp (legal) and smokable cannabis (illegal in states that include Texas) isn’t so simple for the naked eye, likely requiring lab tests to determine the potency.

Companies engaging in sloppy manufacturing or false advertising aren’t the only ones responsible. There’s also a lack of reliable research for businesses and consumers to use.

Even those most versed in the technicalities can struggle with key distinctions. Mehler told NBC News that the Drug Enforcement Administration agent who took on the case against his client incorrectly testified in courtthat the law defined hemp as containing 0.03 percent THC when it’s actually 0.3 percent. Mehler said even the 0.3 percent threshold is an infinitesimal amount of THC.

Confusing one decimal point nearly upended Mr. Gonzalez’s entire life. And it destroyed his cargo. Mehler said the hemp wasn’t properly stored by the authorities and had to be dumped.

Unless these issues are addressed, people will keep losing their jobs for no reason, delivery drivers will continue being jailed and patients seeking alternative treatments will remain in the dark about what they’re actually taking.