CBD- Current Legal Status

Posted on July 10, 2014 by Jeffrey Feiler

Florida's "Compassionate Medical Cannabis Act of 2014" ("the Act") went into effect on July 1, 2014. The law will authorize five nurseries around the state to grow strains of cannabis that have a low percentage of THC and a relatively high percentage of cannabinoids, especially CBD. Although the law does not completely legalize medical marijuana, it does allow patients with limited medical conditions access to CBD cannabis extracts that are manufactured in the state.

Extract oils containing CBD occupy a very particular legal niche. CBD extracts are technically legal in the United States, and a patient does not need to live in a state where medical marijuana is legal to use them. Growing cannabis to produce CBD oils, however, is still illegal at the federal level, and in states where medical marijuana is illegal.

CBD's legal status stems from a press release published by the Drug Enforcement Agency on October 9, 2001 stating, "If [a] product does not cause THC to enter the human body, it is a noncontrolled substance that may lawfully be sold in the United States." Despite issuing the press release, the DEA continued to ban hemp products if they contained trace amounts of THC. The Ninth Circuit Court of Appeals addressed the discrepancy in Hemp Industries Association v. Drug Enforcement Agency, where it held that "non-psychoactive hemp is not included in Schedule I," and that "[t]he DEA has no authority to regulate drugs that are not scheduled[.]"

While hemp products, including oils containing CBD, are legal in the United States, the oils on the market usually do not contain the levels of cannabinoids that are beneficial to patients with seizures and other medical conditions. The Act will bring quality and consistency to the market by allowing different varieties of low-THC cannabis to be grown within the state of Florida.

With the Act now in effect and Amendment Two on the November ballot, Florida residents will have the opportunity to legally use medical marijuana as a treatment option. In the past twenty years, however, Florida courts have allowed some patients with no other treatment options to use medical marijuana by recognizing medical necessity as a defense.

The necessity defense allows someone charged with a criminal offense to be excused from the crime if complying with the law will bring a greater harm than violating it. For the necessity defense to apply in Florida, the defendant must establish that:

(1) The defendant reasonably believed under the circumstances that an immediate emergency or danger existed which threatened significant harm to the defendant or another person;
(2) The defendant did not intentionally cause the emergency or danger;
(3) The defendant had no way to avoid the emergency or danger except by committing the crime charged; and
(4) The harm that the defendant sought to avoid by committing the criminal act must outweigh the harm caused by committing the criminal act.

There have been three landmark cases in Florida where courts have applied the necessity defense to medical marijuana. In State of Florida v. Musikka, which was decided in 1989, a lady in Broward County asserted the medical necessity defense at trial after being charged with cultivating six marijuana plants. The woman testified that she was suffering from glaucoma and had already lost sight in one eye. The woman's doctor testified that without marijuana, she would go blind. The judge found that the woman was not guilty because her marijuana use was excused under the medical necessity defense.

In Jenks v. State of Florida, the First District Court of Appeals reversed the conviction of a husband and wife charged with growing marijuana because there was sufficient evidence in the medical necessity defense. The Jenks Court reasoned that marijuana's classification as a Schedule I controlled substance did not preclude the medical necessity defense for marijuana cultivation. The First District Court of Appeals again upheld the medical necessity defense in Sowell v. State, even after the legislature removed language in section 893.03(1)(d) of the Florida statutes saying that "the legislature recognizes certain substances are currently accepted for certain limited medical uses in treatment in the United States, but have a high potential for abuse."

Until voters decide to fully legalize medical marijuana in November, Floridians with particular medical conditions, such as epilepsy, will be allowed access to medications containing CBD. Some Floridians with no other treatment alternatives, however, may assert the medical necessity defense in court if charged with a marijuana related offense.

  • Broward, Florida
  • Miami-Dade, Florida
  • Palm Beach, Florida