CBD Issues in Florida

Kevin Grimes

Ladies and Gentlemen,

First, allow me to give credit where credit is due. The information regarding Ms. Burkhalter comes primarily from CNN.com, but the rest is from me.

Disney World may be the most magical place on Earth, but it turned into a legal nightmare for a great-grandmother with arthritis.

Yesterday (May 7, 2019), a 69-year-old woman was arrested at a Disney World checkpoint in Orlando, Florida when an Orange County Deputy found CBD oil in her purse. She then spent 12 hours behind bars before being released on a $2,000 bond.

Hester Jordan Burkhalter, a great-grandmother from North Carolina, began using CBD oil for her arthritis after her doctor recommended it. She even had a note from the medical professional in her purse at the time of arrest, but it didn’t matter.

Burkhalter said that she had been planning on the trip for two years. “I have really bad arthritis in my legs, in my arms and in my shoulder,” she said. “I use (CBD oil) for the pain because it helps.” When she was stopped by security outside of the Magic Kingdom, however, she was arrested. “I’ve never had one speeding ticket in my life.”

Despite the fact that it’s sold on store shelves across the state, CBD oil is still technically illegal in the state of Florida (unless the user has a prescription). This has created a confusing situation in the Sunshine State.

Jennifer Synnamon, a Florida attorney, said, “a little drop of oil, with the CBD, is a felony. Meanwhile, you can have up to 19.9 grams of leaf-marijuana, and it’s a first-degree misdemeanor.”

Although the Orange County Sheriff’s Office has stated that its deputy was merely following the law, the charges against Burkhalter were eventually dropped. The Orange County Sheriff’s Office provided following statement:

This was a lawful arrest, as possession of CBD oil is currently a felony under Florida State Statute and Deputies are responsible for enforcing Florida law and Orange County ordinances. Although CBD oil is illegal without a prescription, our top drug enforcement priority and focus at the Orange County Sheriff’s Office is to get deadly drugs, like heroin and fentanyl, off the streets of our community.

In a statement provided by Burkhalter’s lawyer Jennifer Synnamon said

I’m very disappointed that the Orange County Sheriff’s Office handled the situation the way they did. Why Sheriff Mina would support his deputies using their resources for a CBD oil arrest of a 69-year-old woman, but then won’t do anything about the gas stations, health food stores, drug stores, etc. that are selling it to the open public is absolutely beyond my comprehension. The State of Florida finds nothing wrong with collecting the sales tax on illegal products, but they allow prosecution for possession of the same. I want to commend Aramis Ayala’s (State Attorney for the Ninth Judicial Circuit Court of Florida and Chief Prosecutor) office for reviewing the case and swiftly determining that they would not prosecute.

The Bottom Line – Until a recently passed hemp bill is signed into law, all CBD products are illegal in Florida.

The Good News – On Friday May 3rd, the Florida Senate voted unanimously to pass a bill to establish a regulatory framework for hemp, sending the measure Gov. Ron DeSantis for his signature.

Florida Senators unanimously passed HB 333 after the House passed the same measure Wednesday. The bill is similar to FL SB 1020, which the Senate also unanimously approved last week. The House made one change to the Senate bill to open any potential pilot research programs to universities and colleges with agricultural programs. To view details on HB 333, please see the attached PDF.

The Bill creates a new section to the Florida Statutes, Section 581.217 (State Hemp Program). It defines “hemp” as

the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.

Section 7 of the Bill does authorize the distribution and retail sale of hemp products, as long as such products meet all of its requirements. It provides:

(7) DISTRIBUTION AND RETAIL SALE OF HEMP EXTRACT. Hemp extract may only be distributed and sold in the state if the product:

(a) Has a certificate of analysis prepared by an independent testing laboratory that states:
1. The hemp extract is the product of a batch tested by the independent testing laboratory;
2. The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent on a dry-weight basis pursuant to the
testing of a random sample of the batch; and
3. The batch does not contain contaminants unsafe for human consumption.

(b) Is distributed or sold in packaging that includes:
1. A scannable barcode or quick response code linked to the certificate of analysis of the hemp extract by an independent testing laboratory;
2. The batch number;
3. The Internet address of a website where batch information may be obtained;
4. The expiration date;
5. The number of milligrams of hemp extract; and
6. A statement that the product contains a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight

While it seems that even in the states in which the distribution and sale of industrial hemp (without a prescription) is illegal, the vast majority of them are not arresting or prosecuting consumers for buying or possessing hemp products.

However . . . the situation in Florida illustrates exactly what can happen when an over-zealous law enforcement officer with not much to do encounters someone with a hemp product. If hemp is illegal, it is ALWAYS possible that a consumer might be arrested for possessing it.

Even though the charges against Ms. Burkhalter were quickly dismissed and she will not be prosecuted, she still spent 8 -12 hours in jail (I’m not sure exactly how long she was there) and posted a $2,000 bond which probably cost her $200.

This reality could pose some serious potential liability for companies that sell hemp-containing or hemp-derived products in states in which hemp is still technically illegal.

The Bottom Line – Hemp products may be sold in Florida AFTER the Governor signs SB 333 into law. But as of May 8, 2019, hemp products without a prescription are still illegal in the State of Florida.

That’s all for now!

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