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CBD Oil – The Military’s Latest Target

In the military, first it was Kind & Strong® bars, now it is CBD oil.

There have been smatterings of cases in which the Air Force in particular has sought to prosecute and / or take administrative measures against airmen for their use of CBD Oil.

For anyone that does not know, CBD oil, or cannabidiol, is a derivative of industrial hemp and contains little to no THC. CBD oil is most often vaped, but can be ingested through edibles and by other means. The advertised wellness properties include relief of chronic pain, reduced or diminished seizures, relief from anxiety, among others. None of these wellness claims have been recognized by the FDA, mostly because the DEA will not permit research to demonstrate those principles.

Instead, the DEA appears fervent in their desire to criminalize CBD oil. Because the DEA arguably has not followed its own internal regulatory requirements, there is a pending suit in a federal circuit, challenging the measure that purports to render CBD oil illegal despite an exemption for that which is derived from permitted industrial hemp grows.

The definition of marihuana from the Controlled Substances Act includes resin from any part of the plant, which includes CBD oil. There is an issue, however, because of the Agricultural Act of 2014, which allows for State Agriculture and colleges / universities to obtain permits to extract industrial hemp, and an additional piece of legislation directs that no efforts be made or resources be used to stop the flow of CBD oil or industrial hemp across state lines. Accordingly, mainstream companies are selling CBD oil and making claims that their product is not made in contradiction of the Controlled Substances Act. Arguably, if the CBD oil were extracted from permitted industrial hemp, then the CBD oil would not be an illicit substance.

For those of you following the movement of United States v. Maj Pugh, the C.A.A.F. opinion upheld the trial judge’s findings that there is no legitimate basis to ban consumption of a product solely because it contains hemp and / or hemp seed oil. Not surprisingly, the C.A.A.F. did not determine that the Air Force Instruction at issue needed to be struck down in its entirety, and its holding was crafted fairly narrowly: “we hold that although AFI 90-507 may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.” Though seeming to narrow the issue, the C.A.A.F. does use language that gives anyone already discharged for violating the same AFI for CBD oil fertile ground to correct his / her military record. Specifically, the C.A.A.F. states in its Pugh decision, “… a blanket ban on all legally available commercial food products sold and regulated in the United States does not advance this [government stated] military purpose.”

Moreover, the C.A.A.F. goes onto explain their rationale as to why the AFI is overly broad: Airmen ingesting Strong & KIND bards do not represent a threat to the integrity and accuracy of the Air Force Drug Testing Program because commercially available United States food products containing hemp seeds do not contain enough THC detectable at the levels proscribed by the department. True, the Air Force has a legitimate concern in prohibiting hemp food products that contain enough THC to trigger a positive drug test. However, banning legal, properly labeled food products well regulated by the United States government under the guise of protecting airman from unlabeled, unregulated, illegal food products is well beyond the Government’s stated purpose for the ban.”

CBD oil is arguably not a food product. Advocates in the filed articulate that it is fairly classified as a supplement. It is not so far highly regulated by the USFDA. But, certain legislation governs its mobility between the states and carves out an exception to the stated DEA schedule that purports to make CBD oil a schedule I controlled substance. CBD oil can be purchased in commercial stores, and online, including at Wal-Mart.com under “Greens and Super foods”.

Based on the language by the C.A.A.F. in U.S. v. Maj Pugh, there is an argument to be made that nonjudicial punishment and / or administrative separation is not warranted. CBD oil does not compromise military drug testing procedures because it does not contain sufficient THC to trigger a “hot” urinalysis. We are aware of between five and ten airmen that were separated on the grounds that each violated the above AFI.

Anyone already having suffered the fate described above or anyone pending nonjudicial punishment or court-martial for CBD oil usage or any product made with industrial hemp or hemp seed oil should seek learned counsel as soon as possible to make an informed decision about going forward. Given the labeling of these commercially available products, anyone facing action for alleged violations of Article 112a for wrongful use of marihuana or marihuana extract also should contact attorneys with a proven record of handling these matters.

All cases are unique.