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CBD Is Now Officially Legal In Florida, But What Does This Mean For Medical Licenses?

CBD products are becoming more and more popular and the CBD market overall is growing quickly. According to recent market research studies, the Hemp CBD market is expected to reach $22 Billion by the year 2022.1 Despite this, legislature has been slow in regulating the industry breeding confusion amongst law enforcement. In turn, the treatment of CBD users across the state has been inconsistent. Champan Law Group’s own Sara Bazzigaluppi has handled CBD cases before the Department of Health – some of which were dismissed, while others instead were formally charged. Finally, we have some clarity.

Senate Bill 1020 Passed Unanimously

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.”2 Signed by the Governor, Bill 1020 took effect on July 1, 2019. After that date, hemp (and derivatives) will no longer be considered a controlled substance under Florida law.

      1. Hemp Market to Reach 22 Billion by 2022
      2. 2019 Session Bill 1020 PDF

Hemp Was Legalized Under Federal Law In 2018

The Hemp Farming Act of 2018 was passed into law on December 20, 2018. The Hemp Farming Act implemented changes to the Controlled Substances Act of 1970 so that hemp and hemp-derivative products are federally recognized as legal – this also includes THC originating from hemp.3

How Does This Relate To CBD?

Bill 1020 helps clarify the status of CBD because it clarifies the status of hemp and hemp-derivatives in the state. While federal law might have legalized hemp last year, until recently, the legal status of hemp under Florida state law was arguable. Now, under Bill 1020 “[h]emp4 is an agricultural commodity. Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants.”5
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.

A Few Things to Consider

Under Bill 1020, “hemp extracts” like CBD oil for example, are substances derived from or that contain hemp and that do not contain other controlled substances.6

Therefore, while CBD is legal, I caution those of you who make use of it to ensure that you are purchasing from a reputable supplier: beware that hemp also contains THC, and any product with concentrations of THC that are higher than 0.3% will not be covered by Bill 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.

How Does This Affect Current Drug Testing For THC?

The normal workplace procedure regarding drug testing involve a urine sample. However, we have found that urine screenings are not effective at detecting the use of marijuana. We encourage those who it may effect to review Attorney Sara Bazzigaluppi’s article “Urine Screenings Are Ineffective at Detecting Marijuana Use or Impairment”. In short, these urine screenings focus on the detection of THCA, which is the primary metabolic product of THC in urine, however, most of the antibodies we produce to react with THCA, will cross-react with CBD. Hence, individuals who use products containing CBD can test positive for alleged marijuana use.

How Does This Affect Licensees?

      1. 115th Congress House Bill 5485
      2. 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.

If you make use of CBD oil for anxiety, or back pain, or as a sleep-aid, you may run into troubles with your employer and with the Department of Health. If you test positive for THC because of your CBD use, the Department will open an investigation against you, and you might even be asked to refer to an impaired practitioner program like IPN or PRN. 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, but this is not the reality. Under Florida law, you cannot test positive for a “drug” as defined by the “Drug Free Workplace Act.”7 Under the Act, cannabinoids are still considered a drug, therefore CBD is considered a drug and cannot be used. 8 There is clearly an argument to be made as to the intent behind the Act – whether the legislature truly meant to punish those making use of non-psychoactive drugs – however, 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 or not…what the Boards will decide remains to be seen.

While it may seem unfair that loyal employees are being terminated and reported to the Department, employers are required by law to report a practitioner if impairment is suspected. In fact, if a licensed healthcare 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.9 Failure to report can result in discipline. This puts employers and coworkers 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, please call an attorney before signing anything or talking to anyone – you will need legal representation to argue the merits. Your license matters and your career matters so hire an attorney who understands the issues.

      1. S. 456.072(1)(aa) ”Testing positive for any drug, as defined in s. 112.0455, on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug.”
      2. S. 112.0455(5) (a) “Drug” means alcohol, including distilled spirits, wine, malt beverages, and intoxicating liquors; amphetamines; cannabinoids; cocaine; phencyclidine (PCP); hallucinogens; methaqualone; opiates; barbiturates; benzodiazepines; synthetic narcotics; designer drugs; or a metabolite of any of the substances listed herein.
      3. 456.072(1)(i) “failing to report to the department any person who the licensee knows is in violation of this chapter, the chapter regulating the alleged violator, or the rules of the department or the board. However, a person who the licensee knows is unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of a mental or physical condition, may be reported to a consultant operating an impaired practitioner program as described in s. 456.076 rather than to the department.”

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