By Keith Mansur

Oregon Cannabis Connection

Once again another state has said selling products with CBD (Cannabidiol) is not lawful, adding more debate and confusion to the controversy surrounding the cannabis plant extract. Two weeks ago a number of retail outlets began selling CBD extracts in Omaha under the guise of industrial hemp laws, but the Nebraska Attorney General Doug Peterson released a memo that made it perfectly clear that CBD products were still not legal.

The memo released by the Nebraska Attorney General states, “To date no drug products containing cannabidiol have received FDA approval. Therefore cannabidiol or any product containing cannabidiol, obtained by any means other than the authorized UNMC study, remains illegal to possess, manufacture, distribute.”

CBD is an extract from cannabis flowers and the resin they produce. It has been shown to have possible medical value, and may be especially effective in preventing seizures and relieving pain. It is not approved by the FDA for medical use, and most retailers sell it as a natural supplement, or a what some refer to as a “nutraceutical.”

UNMC is the University of Nebraska Medical Center which was authorized under Nebraska law to conduct a four year long study into the medical efficacy of CBD. Under state law, the university has the authority to distribute CBD under the research program, but the sale of CBD products outside of the university program was believed to be allowed by CBD American Shaman, the company that began selling CBD extract in the past couple of weeks. They cite the current federal law allowing industrial hemp products as the basis for their claims.

Attorney’s for CBD American Shaman responded in a letter to the Nebraska AG which stated, in part, “The CBD American Shaman Store does not sell Marjiuana as defined by the state statutes or regulations. Nor do they advertise, suggest, or tell customers that they do so. They do not warrant, advertise or suggest that their products are medicinal hemp extract as authorized under the Statutes, or that they are one of any State licensed facilities to sell hemp extract or qualify under 28-463-468 as medicinal cannabidiol under the State licensed University study.”

What they do claim, according to business owner Donald Anderson’s comments to KETV Channel 7 in Omaha, is that the product is allowed under the current industrial hemp provisions, “They are classifying what I am selling as a marijuana product, which it is not, it is an industrial hemp product.”

The problem stems from the definition of industrial hemp and whether extracts derived from the leaves and flowers of the plants fall within the narrow definition. That definition requires the Tetrahydrocannabinol (or THC) levels from a hemp crop be under 0.3%, but the Ninth Circuit Court of Appeals ruled (see Hemp Industries Association v. DEA, 357 F.3d 1012 – 9th Cir. 2004 – Hemp II) that extracts derived from flowers and leaves were not industrial hemp, but still considered marijuana. The Ninth Circuit ruling stated:

“When Congress excluded from the definition of marijuana ‘mature stalks of such plant, fiber . . . , [and] oil or cake made from the seeds,’ it also made an exception to the exception, and included ‘resin extracted from’ the excepted parts of the plant in the definition of marijuana, despite the stalks and seed exception.”

Hemp producers, or at least those that produce medicinal hemp strictly for CBD, believe any product that comes from industrial hemp is legal as long as the THC level is below 0.3% and base their opinion on the Agricultural Act of 2014 (often referred to as “the farm bill”). But, the farm bill is very precise and requires universities and state departments of agriculture be involved in the production and cultivation of hemp as a research endeavor. Also, the DEA and FDA consider CBD to be an experimental drug which creates a whole litany of requirements for the substance to be administered, none of which are being followed by any state so far. Still, a few locations do still offer CBD oil in Nebraska.

The truth is, that industrial the hemp laws were created to allow for the study and production of industrial products, like fiber and seed, not medicine, more commonly referred to as “dietary supplements”, extracted from the flowers. This conundrum can only be solved by addressing the current schedule I status under the Controlled Substances Act at the federal level. We can hope action might be taken soon since many states have legalized just CBD with the hopes of using it as a potential medical treatment, and the position of the FDA and DEA has put a strain on the ability of states to have it available for study or treatment.

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