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Davis Brown Health Law Blog  

CBD and Hemp Products - January 10, 2018

We receive many questions regarding the legality of CBD (cannabidiol) and hemp products in Iowa.  While there appear to be widely different views on the legality of CBD, it is currently classified as a Schedule I controlled substance by the U.S. Drug Enforcement Agency (“DEA”), making it illegal on a federal level. 

Some vendors of CBD products claim to have extracted the CBD from portions of the marijuana plant that are not illegal which includes (i) the plant’s mature stalks; (ii) oil or cake made from the seeds; or (iii) sterilized seeds.  In classifying CBD as a Schedule I controlled substance, the DEA claims that it is not possible to extract useful levels of CBD from these portions of the plant which is why it has classified all CBD as a Schedule I drug. 

We understand lawsuits have been filed challenging the validity of the DEA classification; however, until this issue is resolved and the classification is changed or clarified, we do not recommend providers sell these products. 

Are CBD products legal in Iowa?

Whether these CBD products are legal in Iowa is also questionable.  While Iowa has recently legalized the use of CBD in limited situations, only licensed distributors selected and approved by the State may sell CBD products and only to individuals who have been prescribed CBD for specific medical conditions. Iowa law regulates all CBD products, not just products exceeding a specific CBD threshold. Under the current Iowa law, we do not recommend providers sell CBD products in their offices, even products containing low levels of CBD or products alleged to be CBD derived from hemp.

We are also aware vendors are marketing a variety of hemp products to providers.  Products made from industrial hemp (which has a THC level of less than 0.3%) appear to be legal to the extent the product is either imported from a foreign country or cultivated by a state for research purposes in accordance with the Agricultural Act of 2014.

We have concerns that products made from industrial hemp grown in the United States, but not for research purposes in accordance with the Agricultural Act of 2014, are illegal under federal law.  Before selling a product claiming to be made from legal, industrial hemp, a provider should verify that the product is imported or is made from industrial hemp grown by a state for research purposes in accordance with the Agricultural Act of 2014. 

Providers also need to ensure the product is marketed and advertised to patients appropriately.  As previously discussed, these products should not contain or be marketed as CBD given the concern over the legality of CBD.  In addition, the FDA has issued a series of warning letters to entities marketing CBD and hemp products regarding their false marketing claims.  We suggest providers considering the sale of industrial hemp products check the FDA website to ensure the product has not been the focus of an FDA warning letter.  Providers should also avoid selling products that promote claims like those the FDA found concerning.

Bottom line

Understand the laws surrounding marijuana and marijuana derived products are rapidly changing.  Ultimately providers are responsible for the products they sell in their practices.  Before selling any product, a provider should ensure it is legal and the product is appropriately marketed.