Why are CBD products sold over the counter some places and tightly regulated in others?

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CBD products for sale at Bucktown shop CBD Kratom - LEE V. GAINES
  • Lee V. Gaines
  • CBD products for sale at Bucktown shop CBD Kratom

Walk into the CBD Kratom shop on the corner of Damen and Dickens in Bucktown and you'll find pill bottles, containers of balm and lotions, and small glass jars full of oil neatly arranged in tall glass display cases. They're all advertised as CBD extracts, one of the primary chemical ingredients in marijuana.

An el stop away, near the corner of Milwaukee and California, the head shop Vape Daze is full of multicolored phallic glass bongs, pipes, vaporizers, and small containers of CBD oil that retail for between $30 to $75, depending on the potency of the extract.

CBD, otherwise known as cannabidiol, is one of several dozen active compounds in marijuana, and the primary nonpsychoactive ingredient—meaning it doesn't get you high. And these two shops are among at least half a dozen retail stores in Chicago that carry products purporting to contain the stuff.

At first it might seem like a no-brainer for vape shops to carry CBD. But its presence alongside e-cigarettes and giant glass bongs is actually surprising: CBD extracts produced by state-licensed medical marijuana cultivators are heavily regulated by state agencies, sold only in state-licensed dispensaries, and restricted to Illinoisans with medical marijuana cards. Meanwhile, CBD extracts available for purchase by the general public appear to be produced with no regulatory oversight at all.

So what gives?

The answer can be found in the patchwork of national, state, and local laws that govern the production, cultivation, and sale of marijuana and hemp products in the United States.

Hemp and marijuana are strains of the same plant species, cannabis sativa. Though they're both cannabis plants, hemp and marijuana differ notably in their genetic makeup and are cultivated and harvested in different ways. CBD is found in varying levels in both plant varieties. The plant commonly referred to as marijuana contains higher amounts of THC (tetrahydrocannabinol), the psychoactive compound responsible for getting you stoned. Hemp, on the other hand, contains only trace quantities of THC and much higher quantities of CBD.

The difference between the CBD products sold at vape shops and those for sale at dispensaries stems from their source: CBD extracts available for commercial retail are derived from hemp, while those produced by state-licensed cultivators are extracted from marijuana.

But no matter from where it's sourced, CBD is the same chemical compound—a fact that adds a layer of confusion and absurdity to its legal status.

"The law should be that CBD is either illegal or legal," says Rod Knight, an attorney and marijuana reform advocate based in Asheville, North Carolina. "But what's happened is the law has evolved on multiple fronts over time and it hasn't grown up together. There's not a top-down policy. It's confusing."

The laws governing CBD start with the Controlled Substances Act of 1970, which labeled all varieties of the cannabis plant, hemp included, a Schedule I drug—meaning it's illegal to grow or sell it and the federal government considers it to have no medicinal value whatsoever. But a "hemp amendment" that was included in the 2014 farm bill—and championed by Republican Senate majority leader Mitch McConnell—changed those rules.

Previously, hemp could be imported, but it couldn't be grown in the U.S. The amendment allowed states to create pilot programs to research and cultivate hemp, which the legislation defines as a cannabis plant containing 0.3 percent or less of THC by weight. (Marijuana plants grown today contain THC levels hovering around 20 percent.) The bill also allows for the marketing of hemp products. Although it's not currently permitted here, legislation is pending in Illinois to allow for the cultivation and sale of hemp.

Hemp has long been grown for a variety of purposes: its seeds can be used to produce food and cosmetics, and its stalks are found in products ranging from construction materials to clothing to biofuels. CBD as a favored hemp product is a more recent development. Over the past several years, as CBD started to gain a reputation for having a variety of therapeutic benefits, hemp producers began marketing and manufacturing CBD extracts.

Preliminary research and anecdotal evidence suggests CBD may carry valuable anti-inflammatory, antiseizure, and pain-relief properties, and may also be effective in treating substance abuse disorders, according to the National Institute on Drug Abuse.

"CBD is so new and really just gaining popularity in the last two years," says Dustin Shroyer, chief operations officer for Revolution Enterprises, a state-licensed medical marijuana cultivator. "We are just now starting to learn what its true potential is." But the research is scant, and, Shroyer says, "mainly what we know about CBD comes from people using it and saying what it's doing for them." (Shroyer also notes that the CBD products his company produces for the state's medical marijuana market also contain varying levels of THC, which is thought to have an impact on the efficacy of the drug.)

The legal picture became infinitely more complicated once states like Illinois began piloting medical marijuana programs and other states, including California, Colorado, and Washington, legalized recreational weed. While marijuana remains a federally scheduled drug at the national level, its legal status actually depends on where you live.

Revolution, like all state-licensed medical marijuana cultivators in Illinois, has been subjected to strict scrutiny since the state's Medical Cannabis Pilot Program took effect in 2014.

Access to its products is restricted to medical marijuana cardholders, and access to those so-called "green cards" has been hard to come by—just about 16,000 state residents have obtained them since the launch of the program.

Meanwhile, retailers sell CBD products sourced from hemp to the general public with little fanfare and no state or federal oversight—with mixed benefit to the public.

CBD Kratom in Bucktown - LEE V. GAINES
  • Lee V. Gaines
  • CBD Kratom in Bucktown

CBD Kratom owner David Palatnik operates out of two locations—his first shop in Bucktown and a recently opened second location in Andersonville. At both shops, patrons can select from a variety of CBD-infused products, from $4 lollipops to capsules, lotions, and oils.

Palatnik says he first tried CBD as a sleep aid about two years ago after purchasing the extract from a smoke shop. He was inspired to open to his shop because he believed "CBD should not be sold in a smoke shop, but in a nicer shop that offers a lot more information about what CBD is and a lot more variety."

Among the brands that purport to sell CBD extracts is Lifted Liquids, a vaporizer company based in Bristol, Wisconsin.

Lifted's CBD products are currently in about 100 stores across the midwest, according to CEO Nick Warrender, and sell for between $55 and $155 per 30ml bottle, depending on the concentration.

Warrender, who suffers from fibromyalgia, a condition that causes widespread muscle pain, says he tried CBD about a year ago and found it significantly relieved his discomfort. The extract can be ingested as a tincture under the tongue or as a vaporizer liquid.

"It takes someone like me, with a seven or eight pain level, down to a three or four," he says.

But because sales of CBD in vape shops fall outside the bounds of the state's medical marijuana program, these products are unregulated. You might buy something labeled CBD, but "you might not be taking anything at all—you might be taking pure glycerin and flavor," Shroyer says.

CBD derived from hemp that's marketed to the general public is "sketchy at best" says Dan Linn, executive director of the Illinois chapter of the National Organization for the Reform of Marijuana Laws (NORML), a nonprofit group that opposes pot prohibition. "There is no testing or quality controls," Linn says, "which are ultimately why I feel they are no different than snake-oil products."

A 2016 study published in the Journal of Regulatory Science tested 23 products with "hemp oil and/or cannabinoid label claims" purchased on the Internet. Of these, 18 tested positive for the presence of at least one cannabinoid compound. But three contained less than 0.01 percent of a cannabinoid, and four products labeled as CBD "were found not to contain any CBD," according to the study.

Palatnik says he purchases all of his CBD products prepackaged from companies based in states where hemp cultivation is legal, tries them himself before he sells them in his shop, and receives lab results from the companies he buys them from detailing each product's chemical composition. Warrender says his company sources "pure isolate"—a crystallized form of CBD—from "the largest hemp manufacturer in the world in Colorado" and then mixes the isolate with a base of vegetable glycerin to create his CBD liquids.

But Warrender declined to provide the name of the Colorado company he works with.

He also acknowledges that the industry is "completely unregulated" and says he was compelled to get into the CBD business because other companies didn't include information about dosing or concentration levels on product packaging.

"We found that dosing was superimportant," he says. "If you didn't take enough, you wouldn't see the right effects, and if you took too much there were adverse side effects." (Palatnik contends that all the products he sells are safe and any concerns about the safety of CBD are the result of a lack of knowledge.)

In the absence of a regulatory system, consumers are reliant on company claims and business owners like Palatnik and Warrender to gain any information about the CBD product they're buying.

A push for regulations to ensure consumers are actually getting what's advertised on the packaging would be a worthy cause. But given CBD's potential medical benefits and nonpsychoactive effect, there's little evidence to justify making it illegal or even just extremely hard to obtain.

Tell that to the DEA. Last December the agency created a new drug classification for marijuana extracts that seemed to indicate that CBD, no matter its source, would be considered a Schedule I drug—in the same category as heroin—despite the provisions carved out for hemp production in the 2014 farm bill and despite the nascent evidence of CBD's potential medical benefits.

Barbara Carreno, a spokesperson for the agency, says the new classification was created as a "housekeeping" measure to better keep track of studies specifically around marijuana extracts. She says the agency has always and continues to view marijuana extracts as Schedule I substances, those "with no currently accepted medical use and a high potential for abuse."

When asked if the agency considered CBD extracts derived from hemp to be a Schedule I substance, Carreno said it's impossible to extract CBD from hemp because hemp is considered to be the stalk of the marijuana plant, and CBD is found only in its leaves and flowers. The DEA backtracked this claim in a recently released clarification acknowledging that you can indeed extract CBD from hemp, but it's just "not practical."

Knight, the legal expert, disagrees. "You can absolutely derive CBD from the hemp plant because it is a cannabis plant," he says. While its stalks are a poor source of the chemical compound, CBD may still be derived from them, he adds. But more importantly, he argues, the DEA's stance is illogical given there's nothing that could legally bar a manufacturer from producing CBD extract from any part of the hemp plant so long as they're abiding by state rules.

Whether or not the DEA recognizes the absurdity of its position, Knight says, the agency's hands are tied when it comes to prosecuting retailers or producers—in short, it can't. A 2016 congressional appropriations bill bars the use of federal funds to to prohibit the sale, transportation, or processing of hemp products "within or outside the state in which the industrial hemp is grown or cultivated." In other words, in states where hemp cultivation is legal, the DEA is forbidden from cracking down.

Because of this, from a federal standpoint, the CBD products found in vape shops, like those sold by Warrender's company, and the CBD items for sale in Palatnik's store, "are completely legal," Knight says. It's possible these stores may violate state laws, but they could only be prosecuted by a state law enforcement agency that doesn't receive federal dollars.

Warrender says he consulted attorneys to be sure that CBD derived from hemp was indeed something he could legally sell to the general public. "The last thing I wanted to do was risk the rest of our business by bringing these products on," he says.

But while the farm bill and subsequent pieces of legislation have essentially legalized the product, Warrender says the industry should still "be ready and willing to defend it."

Officials with the Illinois Department of Agriculture say CBD products fall under the purview of Illinois's medical pot pilot program and that they forward any reports of stores selling what purports to be CBD to the "proper authorities." Officials in charge of the medical cannabis pilot program echo the DEA, calling hemp a Schedule I substance.

Given the legislation in place, the number of stores openly selling CBD products, and the fact that law enforcement would need to make sure they don't spend federal dollars in any crackdown effort, it's unlikely these businesses will experience any pushback from state or federal agencies.

Of course, this legal and regulatory confusion could all be resolved at some point if the federal government relaxed its regulations on marijuana. Or it could become still more confusing. Even as Attorney General Jeff Sessions has promised to crack down on states where pot is legal, on Wednesday the state house and senate introduced bills to make recreational weed legal in Illinois.


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