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Redefining Medication While in Line with the TSA

Your bags are packed,

you’re ready to go,

you’re standing here outside TSA,

You’d hate to wind up with a criminal record…

Did you pack medication?

Will they land you in federal prison?

Is your pill box TSA approved?

Because you’re leaving on a jet plane,

don’t know when you’ll be back again,

Sure hope the pills are labeled riiiiiiight

#HempFarmBill

If you’ve been paying attention to #HempFarmBill pushed by U.S. Senator Mitch McConnel, you may have noticed that on December 20, 2018 the Agriculture Improvement Act removed some Cannabis, specifically hemp, products from Schedule 1 of the Controlled Substances Act. The removal will generally remain in force through 2023 and has big implications for the entire cannabis industry.

But what is “hemp?”

Along with removing some Cannabis products from Schedule 1, the Agriculture Improvement Act finally gave us a long awaited legal definition of “hemp ” at the Federal level.

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. Agriculture Improvement Act of 2018 Sec. 10113 Sec. 298A. (1).

This new federal definition is closer to the traditional meaning of the terms in the industry. The new definition also reinforces the legal definitions already in place in states like Washington and Oregon. Even before the Act, “hemp” has generally been used to describe non-intoxicating Cannabis. That is, cannabis harvested for industrial use. This is different from the term “marijuana” which is usually used to describe cannabis that contains more than 0.3% THC and can induce psychotropic or euphoric effects.

In Brief

Flying with Your Prescription

The Agriculture Improvement Act puts more power in the hands of the states to decide whether or not to regulate and control the research and production of hemp. Transportation of hemp products, however, has been opened up significantly. Now “[n]o State […] shall prohibit the transportation or shipment of hemp or hemp products” under the Act. (Agriculture Improvement Act of 2018. Sec. 10114. (b))

This change is a big deal for people flying with hemp products. On Sunday, May 26th, 2019, the TSA updated their guidelines to allow certain medical marijuana products. “Products/medications that contain hemp-derived CBD or are approved by the FDA are legal as long as it is produced within the regulations defined by the law under the Agriculture Improvement Act 2018.” (https://www.tsa.gov/travel/security-screening/whatcanibring/medical)

Which is Which?

It is unclear how individual TSA agents will differentiate between hemp and marijuana products that contain more than 0.3% THC. Many states, like Washington, have introduced guidelines on product labeling. This does not mean, however, that that every TSA agent will be immediately ready to read an understand those product labels.

Even though “Medical Marijuana” is listed as approved in both carry on and checked bags, further instructions on TSA’s “What Can I Bring” page explain that “TSA officers are required to report any suspected violations of law, including possession of marijuana and certain cannabis infused products.” Until we see some kind of national standard for product labeling, many TSA agents may err on the side of reporting the medications that they find.

When hemp starts on a farm, the THC limit is monitored by state governing bodies. Hemp with too high a THC content must be destroyed. Only after a farmer has failed to destroy an offending crop that punishment begins. THC heavy hemp (called “hot” hemp) is often caused by framers using new seed or by overly long flowering periods. Farmers can’t always control what comes out of the ground. CBD product manufacturers have more ability, during process of rendering hemp into consumer goods, to control the THC quantity. While we can hope that the same presumptions of innocence enjoyed to farmers will be extended to product manufacturers and airline passengers, it may be some time before we have a clear answer.

TSA Response

TSA spokeswoman Lorie Dankers is on the record as saying that TSA’s officers are focused on detecting threats to aviation equipment and passengers, not locating drugs. This means, when marijuana or other illegal substances are found during screening or in baggage, both checked and carry-on, the policy is to call in local airport law enforcement. TSA is and always has been more concerned with aviation safety than reporting the movement of your medications. Agents are not looking for your medications, but may be forced to report what they find.

To be clear, when it comes to non-hemp marijuana products (those containing more than 0.3% THC), policies have not changed. It still does not matter whether the product is illegal where it has started or where it is going. It is still illegal to transport marijuana products between states whether by ground or by air.

What Should I Do? Risk Management

With confusing laws overlapping and contradicting each other, coupled with uneven enforcement of the laws that are clear, the risk to traveling with Cannabis is largely unknowable. People fly with their medications all the time without TSA knowing or caring, but each time risks being caught transporting cannabis in violation of Federal law. Penalties for those caught will vary from nothing, to potentially long prison sentences. The scrutiny and strictness you face will likely depend on where you are, who you are, and what you are carrying.

The important question for anyone flying with federally legal hemp products is how far their personal tolerance for risk goes. Flights and medications are expensive. Is it worth the risk to fly with your medication if it means you could be significantly delayed at the airport? What if you’re asked to throw out your medication, or barred your flight entirely?

Even if your products are legally beyond reproach, proving that in line at the airport could be difficult or impossible. It is a good idea to consider whether you have options other than flying with your medications, especially if you plan to fly through prohibition states without robust medical or recreational marijuana programs. In the end, however, the choice is a personal one.