Confusion Over Cannabidiol: Is CBD legal? It depends who you ask

The cannabis chemical CBD is for sale all over Southwest Florida in a variety of products. Driving down U.S. 41 in Fort Myers, you can’t miss all the stores selling the popular hemp product.

Extracted from hemp, CBD (or cannabidiol) won’t get you high, but users say the popular product helps them fight things like pain, anxiety, and insomnia. And you don’t need a medical marijuana card or to go to a dispensary to buy it.

“There’s more curiosity for people to look into this as an option,” Rob Fontano, owner of Cirrus Smoke Shop in Fort Myers, said.

He said he’s been selling it for about a year.

Jimmy Java, owner of Jimmy’s Java, just started selling the hemp-based compound at farmer’s markets, adding it to his coffee.

“That’s what made us get into it is, the market demanded it,” he said. “And we can’t keep it on the shelves.”

But during this WINK News investigation, we found the soon-to-be multi-billion dollar industry has its issues.

For starters, the state of Florida says it’s not legal, writing in an email: “At the present time, CBD products are not legal for sale in Florida.”

So how did it end up for sale on nearly every street corner?

CBD in a Legal Gray Area

“There are more questions than there are answers,” said Pamella Seay, attorney and Florida Gulf Coast University marijuana law professor.

Seay said it’s all up to interpretation.

“The law is in a state of turmoil, we really do not know what is legal or not legal within the framework of both state and federal law,” she said.

It’s unclear, in part, because last December federal lawmakers made it legal for states to create commercial hemp programs as part of the 2018 farm bill.

Lawmakers also redefined hemp, taking it off the list of Schedule I drugs, under the Controlled Substances Act.

WINK News received this statement from the Drug Enforcement Agency (DEA):

“With passage of the 2018 farm bill, any part of the marijuana plant (including seeds, derivatives and extracts) that have a THC concentration of no more than 0.3 percent THC are now defined as “hemp” and accordingly, do not fall under DEA’s purview. Therefore, if CBD came from a “hemp” plant (a plant with less than 0.3 percent THC) it would also not fall under DEA’s purview. Most CBD is less than 0.3 percent THC.

Please note that I am saying “not under DEA’s purview” instead of “legal.” That is deliberate. CBD may still be “illegal” depending on local or state laws, and depending on what you are doing with the CBD you may fall under FDA’s jurisdiction (for example if you are purporting it to be a medicine or cure diseases). But if it is below 0.3 percent THC, it is not in DEA’s purview.

Also, just as a side note, if the plant is 0.3 percent THC or ABOVE, it is absolutely DEA’s purview and is still illegal. That would legally be considered marijuana which is still an illegal Schedule I controlled substance just as it always was.

Anyone distributing products containing 0.3 percent or more is breaking federal law and could be subject to prosecution.”

Sounds like a green light for CBD, right? Not so fast.

“The answer is maybe or maybe not,” Seay said. “I do believe that business owners may be taking a calculated risk.”

It’s a risk some businesses are clearly willing to take.

“If you don’t have specificity in the law, how do you enforce that?” Seay said.

When WINK News checked back in, both business owners said they make sure their CBD vendors follow federal laws according to the 2018 farm bill, and they’ve been in touch with local law enforcement.

“Their position was as long as these products are tested properly and these products do not exceed the legal limits and do not contain anything synthetic or illegal, that they’re ok with it,” Fontano said.

Jimmy Java told WINK News his product was mistakenly pulled from the Marco Island Farmer’s Market by city workers, who reported him to the Collier County Sheriff’s Office. He’s since returned to selling it there.

“They called the sheriff’s department and sheriff’s department said, ‘no it’s not illegal,” Schillreff.

So, they don’t plan to close up shop anytime soon.

WINK News reached out to Lee, Collier, and Charlotte County Sheriff’s Offices on this issue, see their statements at the bottom of this article.

In the meantime, what’s being done to clear up the grey area?

The Florida Department of Agriculture told us it’s working on creating a statewide hemp program. Once lawmakers pass a bill and it is approved by the USDA, CBD will officially be legal in for sale in Florida and highly regulated so that consumers can feel more comfortable buying it.