Cannabis Law Prof Blog

Editor: Franklin G. Snyder
Texas A&M University
School of Law

Monday, March 9, 2015

Why Most CBD Laws Fail

2014 was the year conservative state legislators discovered cannabidiol, or CBD, and rushed to pass nearly a dozen laws intended to allow access. 2015 will likely see the passage of at least a few more. Unfortunately, with the exception of one state, these laws are proving to be utterly dysfunctional and end up betraying the hopes of the seriously ill patients whom they are intended to help. 

CBD is one of many active ingredients in marijuana that shows tremendous promise for its medical applications. Most notably, for some people it seems to contribute to a huge reduction in the number and severity of seizures when traditional medicines fall short. As a result, CBD has become very popular in some circles — particularly among parents — as something of a miracle cure. 

It also became a miracle cure for conservative legislators, who are under increasing pressure to pass medical marijuana laws. While there is more and more evidence that marijuana really does have practical medical applications, conservative states really can’t get over the fact that marijuana is used recreationally too. This rankles. Add to that the association with damned dirty hippies, and conservative legislators in Tennessee, Alabama, Kentucky, Mississippi, the Carolinas, Utah, Iowa, and other red or dark purple states find the whole medical marijuana thing too icky to seriously contemplate. 

Enter CBD, which doesn’t lead to euphoric effects. Helping sick kids without opening a back door to the subculture getting access to legal pot is a win-win as far as these states are concerned. It seems to provide a simple solution to a complicated problem. One state passed a CBD law in 2013, with 10 more additions in 2014. Our first 2015 addition to the club is Virginia.   

These laws go by different names, including “high CBD,” “low THC,” “hemp oil,” “cannabis oil,” and others. The only real naming convention is that they rarely use the word “marijuana.” But like a lot of simple solutions to complicated problems, there’s a catch: almost none of them work. 

There are several reasons for this, and it is important for those who advocate for these laws to know and take measures against their nearly perfect record of dysfunction. Here is my top ten list, which I pared down to five because ten is actually a lot. 

  1. CBD cannot be prescribed by a doctor. Like the plant from which it comes, CBD is a schedule 1 substance and a prescription from a doctor for it is illegal. Language which requires it to be prescribed (de facto or otherwise) renders the law moot because of federal law. And of course doctors can’t distribute it either. (Alabama, Florida, Kentucky, Wisconsin)
  2. Colleges won’t grow marijuana. Some of these laws require post secondary schools to cultivate marijuana plants used to produce CBD. But since colleges and universities are heavily dependent on federal government dollars for research and student aid, they won’t go there. While technically the DEA could authorize it, they have only ever allowed one university to do it: the University of Mississippi. (Tennessee, Utah)
  3. Patients cannot legally transport CBD across state lines. Some of these laws do not allow in-state cultivation or distribution, and either imply or advise patients to go somewhere else and bring it back home. The federal government has a catchy phrase for this, called “interstate trafficking of a controlled substance.” It is frowned upon.  (Iowa, North Carolina, maybe South Carolina, Wisconsin)
  4. States cannot violate federal law. CBD laws that require the state to be in the business of cultivation or distribution are moot because it requires a state to break federal law. It’s one thing to regulate (probably not a direct conflict), it’s another to grow marijuana and distribute it. (Nearly Missouri until amended at the last second, Utah)
  5. Affirmative defense bills suck. Sometimes we see bills that say that if a person gets in trouble, they can get out of it if they meet certain criteria. But first there is an arrest, one or more criminal charges, possible jail, press coverage, lawyers, lost jobs, and no infrastructure to actually get CBD other than breaking a series of laws. They are no solution at all. (Alabama, Mississippi, Virginia)

The one state that got it right was Missouri. How did they do it? Well, they listened to the organizations that have been passing workable medical marijuana laws for a long time now. Then they calibrated the regulatory structure to allow only a minimal amount of THC. Smart. Kansas is now considering a similar approach. Texas? Not so much. They want doctors to prescribe it and the bill sponsor is now refusing to consider any amendment. <Sigh.>    

While there is some entertainment value in tittering behind our collective hands at legislators who think they know better and don’t, there are significant problems. First, they distract from comprehensive bills that actually do work – not only for the seizure patients, but for the other 98% of the patients in the state who could benefit from larger amounts of THC. Second, they are likely to gum up the legislative process for at least a second session while legislators try and figure out what to do to fix these broken laws before they consider anything broader. And finally, they leave those who urgently need CBD out in the cold while legislators proclaim victory and return to finding ways to make it harder for Democrats to vote. 

Most of the national groups continue to push for comprehensive medical marijuana laws, but for those states in which they are not politically possible, I hope they can learn the lesson from their peers and then look to Missouri. Because where CBD laws are concerned, Missouri actually does turn out to be the Show Me State. 

https://lawprofessors.typepad.com/cannabis_law/2015/03/why-most-cbd-laws-fail.html

Drug Policy, Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, Really Stupid, State Regulation | Permalink

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