JACKSONVILLE, Fla. – A natural foods grocery chain in Neptune Beach is now offering over-the-counter cannabis derivatives to shoppers, essentially skirting state and federal law.
The cannabidiol (CBD) products found on the shelves at the Lucky’s Market in Neptune Beach are said to be derived from hemp, a variety of Cannabis sativa with negligible concentrations of tetrahydrocannabinol (THC), the psychotropic cannabinoid that is responsible for making you “high.”
Colorado-based Lucky’s Market first began offering these "hemp-derived" CBD extracts and oils in many of its stores earlier this month. The company’s October issue of “Health & Happiness” was centered around the medicinal benefits of the drug.
The front page of the company's monthly wellness magazine was a backdrop of cannabis leaves with tincture bottles and droppers filled with what one can only imagine was some sort of cannabis-based oil. An advertisement in the bottom corner of the magazine instructed readers to turn to page six to learn more about how CBD extracts can help calm anxiety and soothe pain.
Prior to Lucky’s recent hemp endeavors, another major American retailer briefly dipped its toe in the business of selling prescription-free CBD products. It was confirmed by multiple news outlets in September that Target.com was selling products manufactured by Denver-based CW Hemp.
The products listed on Target’s website were only available for a short time before the company either sold out or decided to pull them off the e-commerce shelf. The web page for one of the products Target was selling is still accessible, but the product is listed as not available.
The corporate decision to carry these medicinal products on the shelf is a direct challenge to the U.S. Drug Enforcement Administration’s classification of cannabis and more specifically, CBD. Currently, cannabis is classified as a Schedule I substance, with no current “accepted medical use and a high potential for abuse.”
First Coast News was unable to reach Lucky’s Market for an immediate comment regarding the company’s decision to stock CBD products at its store in Jacksonville.
Due to a growing demand for cannabis-based products in the U.S., the DEA was recently forced to address and clarify what derivatives of the plant fall under the administration’s drug code for a "Marihuana Extract."
Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations. As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves.
According to DEA code, an extract is defined as any substance “containing one or more cannabinoids that have been derived from any plant of the genus Cannabis…” By this definition, all CBD extracts and oils derived from the hemp plant would classify as Schedule I illegal substances.
Lucky’s however, isn’t backing down from its decision to stock these hemp-based CBD products, and the loophole the company is exploiting may prove to be quite the heel spur for a budding Florida marijuana industry.
So, why aren’t consumers seeing Florida-based low-THC cannabis products available for purchase at their local market or health food store? The answer lies in what these products are derived from.
All of Florida’s medical marijuana treatment centers (MMTCs), which are the only entities legally allowed to grow, harvest and sell medical marijuana in the state, produce products that are derived from either high or low-THC marijuana plants, not hemp.
The Stanley Brothers of Colorado sell their CBD products under the label CW Hemp. “CW” is an acronym for Charlotte’s Web, the crossbred strain of marijuana and hemp the two Coloradans trademarked back in 2011. The strain received international attention in 2013 when CNN showcased its effective use in reducing seizures.
The Agricultural Act of 2014, also known as the Farm Act, paved the way for companies like CW Hemp to legally sell hemp-derived products in all 50 states. In accordance with Section 7606 of the Farm Act, certain universities and state departments of agriculture can legally grow “industrial hemp” through a pilot program for the purposes of academic research.
The term “industrial hemp” is defined as the plant Cannabis sativa L. and “any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
President Barack Obama signed the bill on Feb. 7, 2014 and it will remain in effect through fiscal year 2018, unless otherwise repealed or replaced.
Furthermore, the Consolidated Appropriations Act of 2015 protects the transportation, processing and sale of “industrial hemp.” Section 543 of the bill states that “none of the funds made available by this Act may be used in contravention of Section 7606 of the Agriculture Act of 2014 by the Department of Justice or the Drug Enforcement Administration.”
That same bill prevents the U.S. Department of Justice from using funds made available to them to inhibit states from implementing laws that authorize the use, distribution, possession and cultivation of medical marijuana.
So, despite the DEA’s recent clarification on how the administration classifies all forms of CBD, any attempt to enforce the opinion would be a direct violation of federal law.
To make matters more complex and possibly frustrating for other CBD manufactures in the state, Florida law makes no mention of hemp-based CBD, only “low-THC cannabis.” Per Florida Statute 381.986(1), “low-THC cannabis” is defined as a plant of the genus cannabis that contains 0.8 percent or less of THC and more than 10 percent of CBD.
For now, Lucky’s Market seems to be in the clear, as the hemp-derived CBD products the company is selling comply with both federal and state law.
This most likely come as good news for potential patients in the region who have been waiting weeks, if not longer, to be fully enrolled in the state's medical marijuana registry.
And for those who are looking to venture into the hemp business, Florida Gov. Rick Scott signed legislation in June that will allow the establishment of industrial hemp pilot projects throughout the state.
The Department of Agriculture and Consumer Services will be responsible for authorizing and overseeing the development of these projects at state universities with agricultural colleges. The FDACS held a rulemaking workshop in Tallahassee earlier this month.