Ohio Takes a Swing at CBD in Medical Cannabis Market
Written by Orion Inskip, Attorney at Gleam Law that specializes in CBD.
Yet another state takes a hardline stance against CBD sold outside the regulated medical cannabis market. With the Ohio Pharmacy Board’s recent “Clarification on Cannabidiol (CBD) Oil”, Ohio has joined states like California and Michigan in ignoring federal law. In their “Clarification,” the Board states that under Ohio law CBD is a derivative of marijuana, regardless of the source.
However, section 7606 of the 2014 Farm Act removed industrial hemp from the definition of Marihuana (Marijuana) in the Federal Controlled Substances Act (“CSA”). Congress explicitly states that the new Act overrides the CSA by saying “Notwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), chapter 81 of title 41, or any other Federal law.” Congress then goes on to define industrial hemp 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.”
Not only did the Farm Act remove Hemp from the CSA, Congress enacted a provision in the continuing appropriations act that prohibits the use of federal funds to interfere with the state industrial hemp pilot programs.
If you are confused, you’re not alone. This is just one example of many glaring and untenable issues in the way Federal and state governments handle hemp and marijuana.
How Limiting CBD Access Jeopardizes a State’s Federal Funding
Many states, including Ohio, have recently passed medical and adult use marijuana laws in defiance of federal law. It may seem counterintuitive that the state is now blatantly defying Congressional intent to undermine access to CBD from hemp. This is most likely the result of pressure from the regulated businesses trying to reduce competition from the unregulated market as opposed to the medical cannabis market. If this is the reason, the state is putting protectionist policies ahead of access to federal funds likely because their legislature does not fully understand that by doing so they are putting all federal funds to their state in jeopardy.
Section 8. Clause 1. Of the U.S. Constitution gives Congress the power to tax and spend. Over 80 years of Supreme Court decisions uphold that Congress has the power to approve or deny appropriations based solely on what Congress deems to be within the “general Welfare of the United States.” Although this is a subject of great debate, the Power of the Purse has the effect of law and even carries criminal penalties under the Anti-Deficiency Act. The current tone from Congress seems to support the state regulated markets and hemp even more.
If this tone should change, Congress could just as easily use the power of the purse to pressure states to shut down those markets. In a divided Congress, we are likely to see the use of funds to implement policies where the lawmakers can’t achieve those goals through actual legislation. This is a dangerous way to implement policies because there is no long-term certainty for the industry members to plan future business and obtain investment.