CBD products are everywhere these days and most people know somebody who has found some benefit from the hemp or cannabis derived non-intoxicating cannabinoid. Senior citizens continue to be one of the fastest growing demographics in the patchwork of legal cannabis markets across the country, and they are surely near the top of the list of CBD consumers specifically.
Such is the case with 69 year old great grandmother Hester Burkhalter of Tennessee. Her doctor recommended that she use CBD oil as a medical supplement to aid with her arthritis. CBD has been shown to have highly effective anti-inflammatory properties. Many patients have found relief in it and she believed the product that she was using to be completely legal after last year’s signing of The Agriculture Improvement Act of 2018 which removed hemp from the federal list of controlled substances.
But last month while on a Florida vacation with her family, Burkhalter was stopped at the initial security checkpoint at Disney World in Orlando and her purse was searched revealing her jar of CBD oil. She was honest about what it was, and why she had it but as is so often the case with law enforcement, she ran into the wrong gate guard. It turns out her interrogator was an off-duty local cop so he radioed in to some on-duty pig colleague to come and deal with the most harmless case and suspect perhaps of all time.
Next thing she knew, her oil was confiscated and she was handcuffed and slammed into the back of a patrol car! The off-duty officer allegedly did a field test on her CBD oil and allegedly it tested positive for trace amounts of THC – currently only legal for Florida residents registered in their medical marijuana program. But as Burkhalter’s lawyers rightly pointed out, these field drug tests are perhaps the most unreliable form of law enforcement… and that’s saying something! They cost less than $10 each and there have been numerous cases of Hershey’s bars testing positive for THC, or even air/an empty chamber testing positive for THC.
Still, there she was in the back of a police cruiser instead of soaring down Splash Mountain. She was only let out of the car once she literally became physically ill after her pleas of not being able to breathe were ignored.
“He was very mean. He was cruel. He wasn’t very professional at all. I guess he was an angry person," Burkhalter said of her badged captor.
NO MAN’S LAND (NO GRANNIES EITHER!)
In an exact inverse of how THC continues to be treated by federal and state laws, hemp-derived CBD is currently federally legal in the form the Burkhalter was carrying it. This law gets fuzzier if you are dealing with CBD-infused foods or drinks as the FDA is still trying to lord over that sector, but that’s a whole other story.
But although her CBD oil is most likely legal in the eyes of the Feds, it is still illegal for her to possess under Florida state law. Like I said, the opposite of THC which has been legalized in some way, shape, or form, in dozens of states, but still sits on Schedule I of the federal Controlled Substances Act making it highly illegal at the highest levels of our government.
Adding to the mess is the fact that while CBD is currently only legal for Florida residents registered in the state MMJ program, the state legislature just passed a bill that will make hemp-derived CBD legal for all adults in the state, residents or otherwise, to conform more closely with federal law.
For her part, Burkhalter pled Not Guilty and settled in for a fight.
In light of the changing legal landscape and the horrible optics thy got in the press, authorities have dropped all charges against Burkhalter citing that her case was "not suitable for prosecution".
She too is willing to let bygones be bygones… right after she sues the Mickey Mouse pants off of Walt Disney World and the Orange County Sheriff’s Department.
Headlines coming out of Florida are often a bit of a meme and are usually looked upon by the rest of the country like Florida is some oddball swampland which, let’s face it… But, what happened to Burkhalter is a huge red flag of what can happen when the federal government starts picking apart the cannabis plant to tell us what is sort of legal, and what is sort of not, and anytime we leave the interpretation of the law up to off-duty cops you’re bound to see injustice like this.
Here is the core of that memo:
· CBD can be lawfully possessed by a person who is a qualified patient under F.S.S. 381.986- Medical Marijuana Statute.
· A qualified patient can purchase prescribed CBD products ONLY from a licensed dispensary.
· Unless a person is licensed, possession of CBD is a violation of Florida statute 893.13(6)(a), which is a third-degree felony.
· The unlicensed sale and/or delivery of CBD is a violation of Florida statute 893.13(1)(a)(2).
· A person who owns, leases, or rents a place with the knowledge that the place will be used for the unlawful sale of a controlled substance is in violation of Florida statute 893.1351.
· Because of the confusion surrounding CBD, deputies are encouraged to consult on-call narcotics or legal personnel prior to making an arrest or seizing CBD.
Mmmmmm, that final bullet point is so savory.
They are so confident in the first five points, standing behind the deputy who saved Orlando from a CBD’d up great-granny on the loose in It’s a Small World.
Then you get to that last one where they gently place Deputy Goofy’s head right under the tire of the bus and advise all of his colleagues that unless they want to find themselves in the same spot, they better call for legal backup next time.
TO CBD, OR NOT TO CBD, THAT IS THE QUESTION
So, can you possess hemp-derived CBD in Florida?
Well, for now it depends on what side of the bed the cop that catches you woke up on. CBD-infused products line the shelves of convenience and health food stores in Florida just like pretty much every other state. But, it is still technically not legal outside of the state's medical marijuana program. That is changing very soon though, so make sure you are always up to date on ever-changing cannabis and hemp laws.
We’ve been writing about it on this site for over a year now – the anti-cannabis status quo is going to pit CBD vs. THC in their undying attempt to keep us from having a good time. Look for similar conflicts to arise until the day that they release the entire cannabis plant in all of its forms from the confines of the Controlled Substances Act. READ MORE ABOUT FLORIDA CBD LAWS HERE