They are testing both CBD oils and edibles that contain CBD, to determine whether the THC levels are “legal” under state and federal law.
This may be the first time local police or SLED officials have acknowledged publicly that CBD oil is legal in South Carolina.
But, what is the “legal threshold” for THC content in CBD oil products under South Carolina law? Under federal law?
How Much THC Can CBD Oil Legally Contain?
First, some definitions:
CBD stands for Cannabidiol, which is one of many active ingredients found in Marijuana. It is used for many purposes, mostly medicinal, but it is not used to get high -it does not have the intoxicating effect that people get from smoking marijuana.
THC stands for Tetrahydrocannabinol, the primary active ingredient in Marijuana. It is used for medicinal purposes, but it is also the chemical that causes the intoxicating effect that people get from smoking marijuana.
Whether CBD oil is legal in South Carolina, and, if it is, how much THC content is acceptable, is an open question at the moment. Until law enforcement starts making arrests and the laws are tested in court, law enforcement is taking the position that it’s legal if they say it is…
Of course, that’s not true. It’s legal if the law says it is, but SC and federal laws dealing with the legality of CBD oil are murky at best.
What Levels of THC are Legal in South Carolina CBD Oil?
The best practice is to find (or make) CBD oil that has 0% THC content – that’s not practical or even possible for many persons who want to use or sell CBD oils, so the next question is: how much THC is too much?
Media reports are claiming that .3 percent THC is the “federal limit,” and that law enforcement intends to test CBD products to ensure that they do not exceed .3 THC content.
But, SLED’s commander of narcotics said last week that THC levels greater than .9 are considered criminal possession, implying that they will arrest and charge individuals who possess or sell CBD oil with a THC content greater than .9 percent.
Conflicting reports say that they will be testing for compliance with a .3 limit and that they will be testing for compliance with a .9 limit. Which is it, and where are they getting these numbers from?
South Carolina’s definition of marijuana, in SC Code Section 44-53-110 (27)(b), specifically excludes CBD oil that is made from seeds or mature stalks of the marijuana plant (hemp), without reference to the percentage of residual THC that is contained in the oil.
Julian’s Law does have a .9 limit, but has no application to retail stores selling CBD oil…
What is Julian’s Law?
SLED must be referring to Julian’s Law, SC Code Section 44-53-1810, for the .9 limit – but it does not apply. Why?
Julian’s Law does not authorize the sale of CBD oil. It authorizes:
- a physician,
- when authorized by the FDA and the DEA,
- to conduct clinical trials,
- in an academic medical center,
- only on patients with a severe form of epilepsy,
- with CBD that is manufactured and tested in an FDA approved facility,
- that has been tested on animals, and
- that contains no more than .9 percent THC.
Law enforcement can’t authorize the sale of CBD oil under Julian’s Law, or enforce the .9 percent THC limit in Julian’s Law, because Julian’s Law doesn’t authorize the sale of CBD oil…
But, Julian’s law is not relevant, because CBD oil is specifically excluded from the definition of marijuana anyway…
What Levels of THC are Legal in CBD Oil Under Federal Law?
Despite the repeated claim in media articles and by law enforcement that there is a .3 percent limit for THC content under federal law, that’s not clear, either.
The source of the .3 figure is the 2014 “Farm Bill,” Section 7606 of the Agricultural Act 2014 (7 USC 5940), which defines “industrial hemp” as Cannabis Sativa L., or any part of the plant, that has a THC content of not more than .3 percent on a dry-weight basis.
So, .3 is the limit, right?
No. The Farm Bill authorizes the cultivation of hemp plants for research purposes only. It does not authorize cultivation of hemp plants for commercial sale of CBD products – I’m not aware of any federal statute that does – which means, under federal law, it is possible that no amount of THC is acceptable in CBD oil products.
Can SLED or Myrtle Beach Police Arrest People for CBD Oil?
In their public statements, they are implying that they will arrest and charge people if they are selling CBD oil with a THC content greater than .3 percent or .9 percent, depending on who’s talking.
The same SLED official who said THC content greater than .9 percent is illegal is quoted in another media article as saying “If it tests positive at all for THC it’s considered marijuana,” implying that they will arrest and charge people even if the content is under .9 or .3 percent.
Can they do that?
They can arrest anyone they want – the question is 1) can they convict a person and 2) will it be a wrongful arrest that exposes them to a civil lawsuit after the case is dismissed…
They have a mess if they try. To recap:
- State law enforcement cannot charge someone under federal law;
- They could notify federal authorities, but, as far as I know, federal law enforcement is not currently charging people for possessing or selling CBD oils;
- The .3 limit cited in federal law, assuming it comes from the Farm Bill, only applies in cases where hemp is grown for research purposes anyway;
- The .9 limit cited by SLED has no application to the sale of CBD products; and
- SC state law excludes CBD oil from the definition of marijuana.
Do I Need Legal Advice if I am Selling CBD Oil Products in Myrtle Beach?
If you intend to grow hemp, extract CBD oil from the hemp, or distribute CBD products at a retail location or online, you are navigating a legal minefield. There are too many moving parts to cover in a blog post, and the interpretation of the relevant laws, selective enforcement of the laws, and the laws themselves are a moving target that will continue to develop.
If you intend to sell CBD products, you need legal counsel who is familiar with this quickly developing area of law and your unique circumstances – to limit your exposure to arrests, fines, civil penalties, or being shut down by authorities.
Do not rely on information in this blog post without consulting an attorney who is familiar with the changing laws and your individual circumstances.