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AUTHOR: Rod Kight
PUBLISHER:  CANNABIS LAW REPORT

 

One single, small amount of CBD oil that you thought was cool to take on a trip with you, could result in life-changing effects,” says Dallas Fort Worth International Airport (DFW) US Customs (CBP) Port Director Cleatus Hunt Jr. in this recent news article. In fact, according to Hunt, any THC found at the airport can result in a DFW police bust.

Although I was unable to find an official US Customs policy regarding cannabidiol (CBD) on its website, a spokesperson for the CBP recently told a Texas news agency that “CBD oil is considered a controlled substance under U.S. Federal law. Travelers found in possession of controlled substances at U.S. ports of entry can face arrest, seizures, fines, penalties or denied entry.”

Before I discuss how Director Hunt and CBP are dead wrong on this issue, it is important to acknowledge that CBD oil derived from marijuana is illegal under both federal and Texas state law. Traveling with it can, indeed, result in seizure of the product, fines, and even arrest. That being said, not all CBD oil is illegal. That being said, it is absolutely clear that hemp and hemp derived CBD are not controlled substances under federal law (which is what CBP enforces):

Section 297A(1) of the Agricultural Improvement Act of 2018 (2018 Farm Bill) states:

The term hemp means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” (emphasis added)

Additionally, Section 12619(a)(2) of the 2018 Farm Bill expressly removed hemp from the definition of marijuana in the Controlled Substances Act (CSA). It states:

The term marihuana does not include— (i)hemp, as defined in section 297A of the Agricultural Marketing Act of 1946[.]”

And, Subsection (b) of the above removed tetrahydrocannabinol (THC) from the CSA when it is derived from hemp and in concentrations that do not exceed 0.3%.

All of this is to say that the comments in the news articles I cited above are demonstrably false with respect to hemp-derived CBD oil. There is no gray area. They are simply untrue statements.

Texas law regarding hemp and CBD has a long and mixed history. (You can read a piece of that history here.) Mostly, CBD has been tolerated in Texas, even before passage of the 2018 Farm Bill. As I discuss in this article, passage of the 2018 Farm Bill arguably preempts (ie, overrides) conflicting Texas state law and prohibits a state from criminalizing it. However, even if Texas is authorized to criminalize possession of CBD, Texas is about to pass a hemp law which would decriminalize it under Texas state law. And, CBP does not enforce state law. It is a federal agency charged with enforcing federal laws.

All in all, this appears to be a short term “flare up” by a misguided or overzealous federal employee who is not familiar with the law. My best guess is that this policy will be updated quickly and that the official(s) responsible for it will be reprimanded. In the meantime, be cautious when traveling with hemp products.

April 26, 2019

Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.