Cannabidiol (CBD) is a phytocannabinoid derived from Cannabis species, which is devoid of psychoactive activity, with analgesic, anti-inflammatory activities. Unlike the main psychoactive cannabinoid in marijuana, tetrahydrocannabinol (THC), CBD does not produce euphoria or intoxication. CBD oil is primarily sold as artisanal product in the form of a tincture, concentrate, capsule, topical, spray, or vape oil.
There is currently one FDA-approved drug comprised of CBD. Epidiolex® is a pure, plant-based, pharmaceutical grade cannabidiol (CBD) extract that has proven effective in treating seizures among individuals two years and older with Dravet and Lennox-Gastaut Syndromes. It is consistent and free from contaminants.
Many alleged CBD products contain other cannabinoids, no cannabinoids, or no CBD. According to research published in JAMA, only 31% of CBD products purchased online contain the amount of CBD advertised on the label. There is no testing requirement to determine the levels of THC or other contaminants, such as mold or fungi. There is also no regulation on the extraction process, which may incorporate toxins such as butane.
In addition, manufacturers of CBD oil claim that their products contain innumerable health benefits such as preventing diabetes, eliminating pain, treating fibromyalgia, post-traumatic stress disorder, and insomnia among others. However, these claims are unsubstantiated as artisanal CBD products have not undergone the rigorous FDA-approval process that ensures that prescription drugs are reliable, pure, and that the benefits of the medication outweigh the risks for the intended population. Because of these unsupported claims, the FDA has sent several warning letters to firms that market unapproved new drugs.
With regard to CBD products in general, a 2015 Idaho Attorney General’s opinion states:
Idaho Code §37-2705(a) and (d)(19) and (27) define as schedule I controlled substances any “material, compound, mixture or preparation which contains any quantity’ of either marihuana” ((d)(19)) or “Tetrahydrocannabinols” (i.e., THC) ((d)(27)). Therefore, in order for an oil extracted from the cannabis plant to not be a controlled substance, two conditions must be met. First, the oil extract cannot contain “any quantity” of THC — not just less than .3%. Second, the oil extract cannot be deemed “marijuana” under Idaho Code §37-2701(t)…
In sum, unless an oil extract contains no THC and is excluded from the definition of “marijuana” under Idaho Code §37-2701 (t)…, such oil is a controlled substance in Idaho.
With regard to potentially THC-free CBD products, the 2015 Opinion states:
Assuming cannabidiol does not contain any THC (which is more than the undersigned knows), in order to not be deemed “marijuana” under Idaho Code §37-2701(t), it must be derived or produced from (a) mature stalks of the plant, (b) fiber produced from the stalks, (c) oil or cake made from the seeds or the achene of such plant, (d) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, or (e) the sterilized seed of such plant which is incapable of germination.
In other words, the CBD must both contain zero THC and be derived from one of the five identified parts of the cannabis plant, otherwise it is illegal in Idaho under current law.
The 2018 Federal Farm Bill removes certain hemp-derived products with a THC concentration of no more than 0.3% by dry weight from Schedule I of the Controlled Substances Act, but it does not legalize cannabidiol (CBD) generally.
The Farm Bill ensures that any cannabinoid that is derived from hemp will be legal if and only if that hemp is produced in a manner consistent with the Farm Bill and associated state regulations. Idaho will need to enact legislation in response to the Federal Farm Bill.
In 2015, CBD was brought to the center of Idaho’s legislative session. The bill, S1146a, promised legal relief for parents of children with uncontrolled epilepsy to obtain CBD oil with up to 0.3% THC from across state lines. In addition to ODP, Idaho State Police, Department of Health and Welfare (DHW), the Idaho Prosecuting Attorneys Association, the Fraternal Order of Police, the Idaho Police Chiefs Association, the Idaho Sheriff’s Association, and the Idaho Criminal Justice Commission opposed S1146a. Concerns about the bill included:
- Lab testing
- Law enforcement
- Product purity
- Product dosing and interactions
Despite these concerns, the Idaho legislature passed S1146a. Governor C.L. “Butch” Otter vetoed the measure and, instead, offered a solution by issuing an Executive Order for an Expanded Access Program (EAP). The EAP would provide children with intractable epilepsy access to pharmaceutical grade CBD, Epidiolex, as part of an FDA-approved study. Epidiolex was approved by the FDA in June 2018 and scheduled by the DEA in September 2018. It is now available for prescription and will be covered by most insurance.
The Attorney General’s Office released a helpful podcast “CBD and Hemp in Idaho” on June 11, 2019. Listen to it here.
Governor Brad Little issued an Executive Order on November 19, 2019 to resolve conflicts between state and federal law related to the interstate transportation of hemp—as defined in the 2018 Farm Bill—across Idaho. The executive order does not authorize or legalize the production of hemp, its byproducts, oils, or any other derivative prohibited by Idaho law. This Executive Order only permits the interstate transportation of hemp consistent with the 2018 Farm Bill and implementing regulations, the Executive Order, and the State of Idaho rules regarding the interstate transportation of hemp.