How rapidly is the hemp-derived CBD market growing? According to recent market research studies, it’s expected to reach $22 billion by the year 2022.
Despite this, legislature has been slow in regulating the industry — in turn, breeding both confusion among law enforcement and inconsistent treatment for CBD users across the state of Florida.
Sara Bazzigaluppi, a Florida healthcare attorney with Champan Law Group, has handled CBD cases before the Department of Health. Some of these cases were dismissed, while others were formally charged.
But with recent legislative action, we finally have some clarity.
Florida recently passed Senate Bill 1020, which purports to create a state hemp program. According to the bill’s transcript, “The state hemp program is created within the department to regulate the cultivation of hemp in the state.”
The law took effect July 1, 2019, and since then, hemp (and its derivatives) are no longer considered a controlled substance under Florida law.
The Hemp Farming Act of 2018 was passed into law December 20, 2018. This measure implemented changes to the Controlled Substances Act of 1970, federally recognizing hemp and hemp-derivative products — including THC originating from hemp — as legal.
SB 1020 helps clarify the status of CBD because it clarifies the status of hemp and hemp-derivatives in the state. While federal law legalized hemp last year, until recently the legal status of hemp under Florida state law was arguable.
Now, with SB 1020 “[h]emp is an agricultural commodity. Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants.” (Please note that the law specifies that hemp means the plant Cannabis sativa L. “that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.”)
CBD is a cannabinoid compound extracted from the flowers and buds of the hemp plant. Therefore, under this language, CBD derived from hemp is officially legal in Florida.
Under SB 1020, “hemp extracts” (for example, CBD oil) are substances derived from or contain hemp and do not contain other controlled substances.
Therefore, while CBD is legal, those who make use of it must take caution and be sure to purchase from a reputable supplier.
Hemp also contains THC, and any product with concentrations of THC that are higher than 0.3% will not be covered by SB 1020 or the federal act.
This is because products with concentrations of THC that are higher than 0.3% fall outside of the definition of “hemp” and are therefore considered a controlled substance under both federal and state law.
The normal workplace procedures regarding drug testing involve a urine sample. However, we have found that urine screenings are not effective at detecting the use of marijuana.
These urine screenings focus on the detection of THCA, which is the primary metabolic product of THC in urine. However, most of the antibodies the body produces to react with THCA will cross-react with CBD.
The upshot? Individuals who use products containing CBD can test positive for alleged marijuana use.
If you make use of CBD oil for anxiety, back pain, or as a sleep-aid, you may run into troubles with your employer and with the DOH.
If you test positive for THC because of your CBD use, the DOH will open an investigation against you. You might even be asked to refer to an impaired practitioner program like IPN or PRN.
While it may seem logical that making use of a completely legal product such as CBD should not result in the referral to a drug treatment program, this is not the reality. Under Florida law, you cannot test positive for a “drug” as defined by the “Drug Free Workplace Act.” Under the Act, cannabinoids are still considered a drug, therefore CBD is considered a drug and cannot be used.
There is clearly an argument to be made as to the intent behind the Act, and whether the Legislature truly meant to punish those making use of non-psychoactive drugs. But this issue of interpretation has yet to be addressed formally.
Consequently, both sides are open to argue their positions: whether the Act encompasses all cannabinoids. And what the Florida Board of Medicine, Florida Board of Nursing, or any other state board will decide remains to be seen.
It may seem unfair that loyal employees are being terminated and reported to the Department, but employers are required by law to report a practitioner if impairment is suspected.
In fact, if a licensed health care practitioner knows that a person is unable to practice with reasonable skill and safety due to an impairment, that practitioner is obligated to report such impairment to the Department or the proper impaired practitioner program.
Failure to report can result in discipline. This puts employers and co-workers in a difficult situation. We at Chapman Law Group get phone calls almost daily from people who are referred to these programs for a positive test, even though the veracity of the results is questioned. If you find yourself in such a position, contact the Florida health care attorneys at Chapman Law Group.
We represent healthcare practitioners and practices throughout Florida — from Jacksonville, Miami, Tampa, and Fort Lauderdale, to Orlando, Gainesville, West Palm Beach, and Coral Gables. Our offices are in Miami and Sarasota.
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In contesting a THC drug screening result, our Florida Regulatory and Licensing attorneys asked for lab records and chain of custody, and we provided proof that the RN was not impaired.
Our Florida regulatory and healthcare licensing attorneys successfully convinced Florida Department of Health (DOH) prosecutors that a penalty of referral to IPN would not be appropriate.
Our healthcare licensing attorneys were able to provide the board with ample evidence proving that CBD can cause false positives and that there was no evidence of impairment.
The client, an EMT, was not a working healthcare provider on the day of the drug test, as the employer administered the drug test on a day when the EMT was not practicing.
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