As states across the nation have responded to an increase in public support for legalized marijuana, including its use for medicinal purposes, Idaho remains one of a handful of states that continues to prohibit any use or possession of marijuana. As of May 2021, a majority of states allow for the medical use of marijuana. During the 2021 legislative session, the Idaho Legislature was presented with House Bill 108, proposing to legalize medical marijuana. Although this bill did not make it out of committee, the legalization of marijuana is an issue that will likely be revisited in subsequent sessions.
The following provides a summary of the current status of laws applicable to use of marijuana and its derivatives in Idaho.
Definition of Marijuana
Idaho law classifies marijuana and many of its derivatives as Schedule I controlled substances that cannot be prescribed, manufactured, distributed, or possessed for any reason. Idaho Code § 37-2701 et seq. A Schedule I substance is one that “has high potential for abuse . . . and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” Idaho Code § 37-2704.
Substances that are considered “marijuana” for purposes of the prohibition are defined expansively under Idaho law as follows:
“Marijuana” means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Evidence that any plant material or the resin or any derivative thereof, regardless of form, contains any of the chemical substances classified as tetrahydrocannabinols [THC] shall create a presumption that such material is “marijuana” as defined and prohibited herein.
Idaho Code § 37-2701(t) (emphasis added).
Due to Idaho’s broad statutory definition of marijuana, any compound containing any amount of THC will be considered a Schedule I controlled substance and subject to laws restricting its use or possession. In 2015, the Idaho Attorney General’s Office confirmed this interpretation through issuance of an informal opinion letter. 2015 Idaho Att’y Gen. Ann. Rpt., p. 132, available at https://www.ag.idaho.gov/content/uploads/2017/12/2015.pdf (“AG Report”). In 2019, the Idaho State Board of Pharmacy issued an advisory document confirming the same. See https://bop.idaho.gov/wp-content/uploads/sites/99/2019/10/CBD_In_Idaho.pdf.
Cannabidiol (CBD) oil is an oil that comes from the cannabis plant, and under Idaho law, is not necessarily considered a controlled substance. Whether CBD oil will be considered a controlled substance depends on two factors: (1) whether the oil contains THC, and (2) the part of the cannabis plant from which it is derived. To be excluded from the definition of “marijuana,” the CBD oil must be derived or produced from (a) mature stalks of the plant, (b) fiber produced from the stalks, (c) oil or cake made from the seeds or the achene of such plant, (d) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, or (e) the sterilized seed of such plant which is incapable of germination. Idaho Code § 37-2701(t). Therefore, CBD oil will be considered a Schedule I controlled substance if it contains any amount of THC, or if it is derived from a portion of the cannabis plant that is not expressly permitted under Idaho Code § 37-270l(t). See AG Report at 133.
Pharmaceutical Grade CBD Oil
While Idaho does not permit the medical use of marijuana, Idaho does allow the use of pharmaceutical grade products that are approved by the Food and Drug Administration (FDA) pursuant to a prescription by a licensed healthcare provider.
At present, there is one FDA-approved CBD drug product that is available by prescription. Epidiolex is a Schedule V controlled substance approved for the treatment of seizures. FDA Regulation of Cannabis and Cannabis-Derived Products (Last Updated Jan 22, 2021), available at https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#approved.
As one of the few remaining states continuing the prohibition of any use or possession of marijuana, Idaho medical care providers should stay up-to-date with legislative developments both at the state and federal level.
Idaho Office of Drug Policy: Cannabidiol (CBD): https://odp.idaho.gov/cannibidiol/