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By Jill K. Sanders, Esq.

It can relieve anxiety and depression. It helps you sleep. It’s sold in oils, sprays, and even lollipops. CBD, a chemical derived from the cannabis plant, seems to be everywhere. But what exactly is CBD? And is it legal in New York?

Defining Cannabis and Related Terms

Cannabis is a genus of flowering plants in the Cannabaceae family.

THC stands for tetrahydrocannabinol, a cannabinoid. THC attaches to receptors in the brain and activates them. This can have a psychoactive effect, and people can experienced changed memory, pleasure, movements, thinking, concentration, coordination, sensory perception, and time perception.

CBD stands for cannabidiol, another cannabinoid. Unlike THC, CBD is non-psychoactive. Many report that CBD has relaxing and pain-relieving properties.

Hemp is a term used to classify varieties of Cannabis that contain 0.30% or less THC content. Hemp usually has more CBD content than marijuana. It can be used to make a variety of products, including clothing, food, supplements, paper, bioplastics, textiles, and insulation.

Marijuana is a term used to classify varieties of Cannabis that contain more than 0.30% THC, and it can induce psychotropic or euphoric effects on the user. Marijuana can contain up to 30% THC content, but usually has a lower CBD content than hemp.

New York’s Laws on CBD

A 2018 federal “farm bill” legalized industrial hemp and its derivatives, including CBD. As such, the transfer of hemp-derived products across state lines for commercial or other purposes is now permissible under federal law.

CBD products which contain more than 0.30% THC or are derived from marijuana continue to be illegal under federal law as a Schedule I drug. This means that, according to the federal government, there is no currently accepted medical use and that there’s a high potential for abuse.

The federal farm bill specifically provided that state may have more restrictive laws pertaining to CBD. As such, it is still illegal in some states, and in others its status is yet to be determined.

In New York, however, CBD is legal if the THC content is less than 0.30%. Note that in New York City, it is legal to sell and possess but cannot be added to food or drinks. Throughout the state, if the THC content is greater than 0.30%, possession is criminalized. As discussed in our recent blog, possession of up to two ounces (57 grams) is a violation. Possession of more than two ounces constitutes a crime, as does sale of marijuana. Note that New York permits possession of the drug by prescription for a medical condition.

Issues With Legalization and Enforcement

The Food and Drug Administration has issued warnings about the marketing of CBD as a cure to any disease or condition. The government agency has never evaluated its safety or efficacy in any regard. There is also no indication on proper dosage, how it would interact with other medications, or if there are side effects.

Regarding enforcement, there have been cases where legal hemp or CBD products are mistaken for illegal marijuana. Just this week, the NYPD’s 75th Precinct, based on a tip from a FedEx driver, confiscated 106 lbs. of material it claims is marijuana. The owner of the materials claims it is legal hemp and that all the proper paperwork demonstrated the THC content was below the legal limit.

Source: Twitter @NYPDNews

It appears that the testing method used by the NYPD merely tests for any level of THC. As such, legal hemp or CBD products may continue to come up as positive as illegal marijuana.

References:

• Dawn MacKeen, “What Are the Benefits of CBD?,” New York Times (Oct. 16, 2019). https://www.nytimes.com/2019/10/16/style/self-care/cbd-oil-benefits.html (last accessed Nov. 6, 2019).
• Mitchell Pawluk and Meaghan Lambert, “New Legislation to Regulate Hemp, Extracts and CBD,” New York Law Journal (Aug. 14, 2019). Available at: https://www.law.com/newyorklawjournal/2019/08/14/new-legislation-to-regulate-hemp-extracts-and-cbd/ (last accessed Nov. 6, 2019).
• Gabrielle Fonrouge and Priscilla DeGregory, “Massive marijuana shipment confiscated by NYPD is legal hemp: business owner,” New York Post (Nov. 5, 2019). Available at: http://nypost.com/2019/11/05/massive-marijuana-shipment-confiscated-by-nypd-is-legal-hemp-business-owner/ (last accessed Nov. 6, 2019).