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May 20 2019 . 9 min read
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Inhale/Exhale with Shoshanna Silverberg

Inhale/Exhale with Shoshanna Silverberg

Confusion surrounding legality and drug testing status of CBD sets in as it goes mainstream

Confusion surrounding legality and drug testing status of CBD sets in as it goes mainstream

In this month’s column, Shoshanna dispels a lot of confusion surrounding the cannabis compound CBD or cannabidiol. As a result of the explosion of CBD products that range from salves and lotions to serums and tinctures, it seemingly can be purchased just about anywhere—health food stores, clothing boutiques, art fairs and major drugstores. With that in mind, Shoshanna reviews everything you need to know about CBD including how you can determine the legitimacy of the CBD products you are buying, CBD’s legality under federal law,

and its potential to turn up on a drug test.  

Dear Shoshanna,

I keep hearing so much about CBD and see it everywhere I go. I just saw some at a farmer’s market over the weekend. I would be interested in trying it for chronic pain that I suffer with as a result of a car accident I was in several years ago, but I don’t want to test positive on a drug test. I am also confused about whether it is federally illegal or legal as I see it’s available to purchase online. I am hoping you can guide me on the drug testing issue and whether CBD is federally legal so I can make an educated decision about whether to give a topical or tincture a try or if I should just continue with my regular pain meds. Thanks so much for your help.

Dear Reader,

You are not the only one asking these questions. For starters, we should probably step back and make sure we’re on the same page as far as what CBD is. Cannabidiol, the chemical compound that “CBD” is short for, is a cannabinoid. Cannabinoids are molecules that interact with various receptors in our bodies to produce a whole array of actions that can produce therapeutic effects throughout the human body’s endocannabinoid system.

Note: Our endocannabinoid system was named this because its discovery occurred through research on cannabis molecules. Cannabinoids exist in other substances in addition to cannabis, but again, because all of this was understood by researchers who were looking into cannabis specifically, we’ve inherited names for scientific principles that are not just relevant to cannabis, but to the ways our bodies are equipped to make healing use of many different botanical compounds. But, alas, this is a topic for another day, let’s get back to CBD.

CBD is a cannabinoid of cannabis, just as tetrahydrocannabinol (THC) is and just as over 100 other compounds we already know of are also cannabinoids of cannabis. THC is best known because it’s what we think of as the cannabinoid that gets us “high,” but CBD is catching on so widely at this point because many, many folks find relief from using it for physical pain and often anxiety, and it does NOT get you “high.” What we need to talk about though is CBD’s legal status, which is possibly even more complicated than the science of it!

There are two main ways a consumer can currently purchase CBD. One is by shopping at a cannabis dispensary, and that could be in a state where only medical marijuana is legal, if you are a registered patient, or it could be in a state that allows for both medical and adult-use (“recreational”) marijuana, and in that case anyone 21 years of age or older can walk in and make a purchase. CBD in this context is going to either be present alongside THC and likely a number of other cannabinoids we are still learning about, or it will be on its own as an “isolate.” Regardless, when you shop in a dispensary you know that your CBD has come from what we tend to call “whole plant” or “whole spectrum” cannabis—the CBD may have been extracted but it came from a plant that originally contained a host of cannabinoids, including more than .3% THC. More than .3%  THC content is what constituted the plant, under law, to be labeled “cannabis” or “marijuana” rather than “hemp.”

Whoa! Ok, what is hemp then? Glad you asked. Hemp is technically a cannabis plant, but because its THC content is so much lower than what we still call “marijuana,” it is regulated differently and access to it for consumers follows different rules than what governs access to cannabis (which is also/still “marijuana”). Meaning, you see CBD at farmer’s markets or even at CVS now, because CBD that is derived from hemp has effectively been legalized since last December through passage of the 2018 Agricultural Improvement Act (the “Farm Bill” of 2018).

While all of the rules as far as where hemp is able to be grown and whether and how it can cross state lines for commercial purposes are all still sort of up in the air, hemp-derived CBD is no longer considered a controlled substance by our federal government. It is now considered a substance that the FDA must create rules for, so that, for instance, advertising for hemp-based CBD remedies is in line with the same rules for advertising that applies to other nutritional supplements or cosmetics. While empirical research into the ability of hemp-based CBD products to heal us from diseases is not required for CBD to be sold, companies also can’t promise us that it will have these types of effects. All companies are really able to do is put their CBD products out there and allow consumers to experiment with them and see what products work for them. And if this sounds like the wild west, that’s because it is.

As far as whether it is legal for you to purchase online, the U.S. Postal Service recently issued a statement explaining that hemp-derived CBD IS permitted to be mailed, provided companies doing the shipping are able to attest that their products fit into the guidelines established by their state under the 2014 Farm Bill, which originally legalized industrial hemp, and which the 2018 Farm Bill expanded upon to open up the status of hemp-derived CBD even more broadly.

The takeaway is that while not everyone you order from online is legit, some companies are, and their shipment of product to you could be legal. However, you as a consumer don’t actually have any way of knowing whether they are shipping it legally. Moreover, you have no idea how safe or efficacious the product you are ordering is. Regardless of whether or not the company is using the mail service legally, there is still an absence of testing standards and many other policies that ensure your safety as a consumer when you are purchasing CBD from a licensed cannabis dispensary. This means that whether we are talking about the mail or your local farmer’s market, the sale of hemp-based CBD is by and large legal, while the protections you enjoy as a consumer are still quite minimal to non-existent. Again, this is not the case for CBD that you find at licensed dispensaries.

As far as drug testing goes, employers tend to test for the presence of THC in their employees’ systems. That is the psychoactive component of cannabis that still raises fear and uncertainty, regardless of whether someone is using THC for medical or “recreational” purposes. CBD, however, is not a cannabinoid that tends to be tested for, as it is not known for its psychoactive effects. And if you are taking a hemp-based CBD derived remedy, while you cannot know for a fact that what is in the remedy is what it claims to be (due to reasons stated above), if what is advertised is really what you are taking, it is unlikely that job-related drug testing would present a problem.

If you want to know more, the Food and Drug Administration (FDA) will be holding a public hearing on May 31st to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds. A webcast of the hearing will also be made available, and a recorded version will be posted after the hearing. To address your specific questions as to FDA enforcement efforts that have recently been documented, on March 28th the FDA and the FTC worked together to send warning letters to three companies (Advanced Spine and Pain LLC in New Jersey, Nutra Pure LLC in Washington, and PotNetwork Holdings Inc. in Florida), citing “egregious and unfounded claims that are aimed at vulnerable populations” in their marketing of CBD products to customers. Examples of such claims include:

• “C.B.D. successfully stopped cancer cells in multiple

different cervical cancer varieties.”

• “C.B.D. also decreased human glioma cell growth and

invasion, thus suggesting a possible role of C.B.D. as an

antitumor agent.”

• “For Alzheimer’s patients, C.B.D. is one treatment option

that is slowing the progression of that disease.”

• “Fibromyalgia is conceived as a central sensitization

state with secondary hyperalgesia. C.B.D. has

demonstrated the ability to block spinal, peripheral

and gastrointestinal mechanisms responsible for the pain

associated with migraines, fibromyalgia, IBS and other

related disorders.”

• “Cannabidiol may be effective for treating substance

use disorders.”

• “C.B.D. reduced the rewarding effects of morphine and

reduced drug seeking of heroin.”

• “C.B.D. may be used to avoid or reduce withdrawal

symptoms.”

This is, of course, just the latest in a slew of warning letters the FDA has been releasing for the past several years. Twenty-five letters have identified roughly 450 websites on which these claims have been made since 2017. But what this should tell you is not that CBD can’t safely be used or trusted. It is to say, however, that licensed dispensaries are currently your best bet to obtain tried and true, lab tested CBD products.

Should you have a question or ethical conundrum you have been struggling with, please drop Shoshanna a line at info@elevatenv.com so she can offer her sage and practical counsel.  


Shoshanna Silverberg is a mover of information and a connector of people. Her background as a civil liberties and human rights advocate were her foray into the cannabis space, where she currently directs business strategy for national consulting firm Pistil + Stigma. She holds a Juris Doctor from Elon University School of Law, a Master of Arts in Holistic Thinking and a bachelor's degree from Hampshire College. She is a true believer that compassion and critical thinking, together, drive positive social change.


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