Every time we come across claims by state officials, law enforcement and prosecutors that over-the-counter (OTC) products containing hemp-derived cannabidiol (CBD) are illegal, we are reminded of the iconic scene in The Matrix. You know, the one where Morpheus offers Neo the prospect of discovering the harsh, yet unalloyed truth about being enslaved in a virtual reality world dominated by artificial intelligence?
This is your last chance. After this, there is no turning back. You take the blue pill – the story ends, you wake up in your bed and believe whatever you want to believe. You take the red pill – you stay in Wonderland, and I show you how deep the rabbit hole goes. Remember, all I’m offering is the truth – nothing more.
The state has been peddling its version of the blue pill for several months now through the official position of the Iowa Department of Public Health. It claims that any CBD product that is not either “medical cannabidiol” purchased from a licensed dispensary by qualified patients or a federal FDA-approved medication, is illegal. The IDPH warns Iowans who dispense, sell, possess or use these OTC CBD products of enforcement actions by the federal DEA and FDA, county attorneys (also here, here, here and here) and law enforcement agencies (and here).
If that was the case, then we would certainly expect to see an increasing number of arrests, especially retail CBD merchants, for felony possession with intent to deliver a controlled substance under Iowa Code chapter 124. However, it’s not happening. Instead of prosecutions, we see virtually identical public service announcements with dire warning of arrests and seizures of CBD products. A lot of talk, but not much action. Sure, county attorneys have discretion to not prosecute. We get it. But essentially no prosecutions across the board? That’s unusual.
The reason merchants aren’t being arrested and prosecuted? It’s because hemp-derived CBD is legal to dispense, sell, possess or use in Iowa. That’s right. We said it. In our opinion, CBD extracted from hemp is legal in Iowa. This is the red pill.
Do you want to see how deep the rabbit hole goes?
Let’s start with the official position statement itself. The IDPH admits it lacks jurisdiction over other CBD products. Let that sink in for a moment. How does an administrative agency with no delegated enforcement authority interpret the state’s drug schedules in a way that criminalizes CBD? And, if that’s the case, why are police and prosecutors relying on this particular agency’s interpretation for guidance? Isn’t that within the ken of the Iowa Attorney General, which, surprisingly, has provided no formal guidance on CBD to county attorneys and law enforcement?
Also, it’s one thing to say on December 1, 2018 that the DEA had enforcement authority over hemp-derived CBD, raising the specter of federal drug charges for CBD possession in Iowa, but entirely another to not correct the official position statement once the DEA was sidelined by the 2018 Farm Bill passed later that month. Federal law now defines cannabis containing less than 0.3 percent THC by dry weight as hemp (cannabis containing more that the proscribed THC level is still defined as marijuana). As a result, hemp and any cannabinoids extracted from it were also removed from the federal drug schedules. It is no longer a federal crime to transport, market or possess hemp-derived CBD anywhere in the United States. The DEA is out of the enforcement picture, but you wouldn’t know that by reading the IDPH position statement.
Moreover, the new federal landscape for hemp extracts certainly raises a number of questions regarding whether local authorities can even maintain enforcement actions against Iowans who dispense, sell, possess or use OTC CBD. Under the 2018 Farm Bill, the state needs to first submit a plan to the USDA to regulate hemp and hemp extracts within its borders. That hasn’t been done. The issue of federal preemption also arises with conflicting state law. Supremacy Clause, anyone? States don’t usually fare well in those instances.
Furthermore, the current definition of marijuana in the Iowa Code contains an exception for compounds extracted from the mature stalk and seeds of cannabis. Those extracts would not be a controlled substance under either state or federal law. Over-the-counter CBD products are often labeled as containing hemp extract as the primary ingredient. In that case, where is the probable cause to believe those products contain prohibited marijuana extracts? We don’t see it.
Like Morpheus, the attorneys at GRL Law offer nothing more than the truth about the legal status of hemp-derived CBD. The red pill is the way forward in Iowa. We believe it’s only a matter of time before the state expressly legalizes hemp and cannabinoids extracted from it.
There’s no turning back now. Want a little more information, check out our podcast on this topic.