“It has something to do with something that is called marijuana. I think itâ€™s a narcotic.” With these words in 1937, U.S. Representative Sam Rayburn described the 1937 Marijuana Tax Act, which passed handily. Rayburn had no idea what marijuana was, nor did anyone else in Congress, but, by golly, they were going to regulate it, in part because of the fear that addicts would turn to marijuana as a substitute for highly addictive substances. Given the emerging modern science on the effectiveness of cannabis-derived “cannabinoids” in the treatment of opioid addiction, this fear of the unknown was particularly unfortunate.
With utmost respect, “unfortunate” could also describe the decision of the Ohio Board of Pharmacy in interpreting the Ohio medical marijuana law as a mandate to restrict Ohioansâ€™ access to cannabidiol, or CBD. CBD is a nonpsychoactive chemical compound with promising therapeutic and entirely benign nontherapeutic uses that happens to be produced from cannabis plants. However, the pharmacy board has determined that CBD is “marijuana” and thereby subject to regulation, citing the Controlled Substances Act definition of “marijuana.”
When the CSA passed in 1970, it required a presidential commission to study cannabis and report back. The Shafer Commission, mostly Republicans appointed by President Richard Nixon himself, reported back in 1972, debunking most marijuana myths (including the alleged high potential for abuse and “gateway” drug theory), urging decriminalization of possession and citing the need for academic research on the cannabis plant. Regrettably, Nixon ignored his own commission because it failed to reach his preconceived conclusions, and our national drug policy has suffered for nearly 50 years.
The fact is that CBD is not marijuana. One can produce CBD from marijuana or from nonpsychoactive hemp. But either way, CBD itself remains nonpsychoactive. Things that are more psychoactive than CBD include coffee and sleep deprivation, neither of which requires medical regulatory oversight.
And how dangerous is CBD? There are restaurants in California serving CBD oil-infused foie gras tacos right now, and the only people getting sick are the cost-averse. The idea that any substance within a cannabis plant is marijuana and must be restricted is an extremely slippery slope of regulatory authority. Cannabis plants also contain water content that can be extracted, but one canâ€™t imagine needing a prescription marijuana card to buy a bottle of San Pellegrino.
Also on the slippery slope of consequences due to a 2011 ATF memo, Ohioans forced to access CBD only through the medical marijuana registry would lose federal and state gun license rights, including concealed carry rights.
America has an unfortunate history of getting it wrong and overregulating cannabis, sometimes due to simple misinformation, sometimes due to political machinations. The moniker “cannabis” itself includes the nonpsychoactive industrial hemp that George Washington grew and that American farmers cultivated during World War II for naval ropes. You could make CBD from any of those Founding Father or “Hemp for Victory” plants, but none would make you feel high.
The pharmacy board has been tasked with important work in regulating medical marijuana, but one of the best ways to ensure regulatory oversight of nonpsychoactive compounds like CBD could be to stay out of the way. Why? Because thereâ€™s already a federal framework, including the DEA, FDA, ATF, numerous other federal agencies and a vast regulatory web of federal laws that could arguably apply to CBD. Federal efforts to regulate CBD are very rare.
In fact, in an opposite trend, Republican Senate Majority Leader Mitch McConnellâ€™s Hemp Farming Act of 2018 would essentially deregulate non-psychoactive cannabis and nonpsychoactive derivatives from cannabis like CBD. McConnellâ€™s legislation would federally pre-empt state law by defining CBD as what we already know it to be: not marijuana.
The pharmacy board should take that same science-based approach and leave Ohioans free to access CBDâ€™s safe, non-psychoactive benefits without restrictions of the medical marijuana program.
Benton Bodamer ofÂ Bexley is a member of Dickinson Wright PLLC and an adjunct professor at the Ohio State University Moritz College of Law. Â