Is flying with CBD legal? The answer is far more complicated than you'd think
When it comes to the self-care industry, there are few things more buzzy than cannabidiol, otherwise known as CBD. The derivative of the cannabis plant is widely touted as an elixir that can, among other things, clear skin, relieve pain, and treat anxiety. The latter benefit, in particular, makes CBD — in its various forms, which range from serums to edibles — particularly attractive to nervous travelers, an increasing number of whom are turning to the plant-based product for pre- and in-flight calm. But is it actually legal to fly with CBD? The answer is a bit complicated.
Even if marijuana is legal in the state you’re flying from or to (or both), the Transportation Security Administration (TSA) is a federal agency — and, as its website states, possessing any marijuana or cannabis-infused products (including CBD oil) is illegal under federal law. That said, as per the TSA’s Twitter, the agency itself doesn’t have regulations about transporting or possessing marijuana products; and they’ve made it pretty clear that their officers aren’t exactly actively looking to bust people for weed or its derivatives. “TSA officers DO NOT search for marijuana or other illegal drugs,” the agency wrote in an Instagram post on, fittingly, 4/20. “Our screening procedures are focused on security and detecting potential threats.”
But before you get too excited, keep in mind that if a TSA agent does happen to spot your CBD goods (including medical marijuana) they’re required by federal law to report it to law enforcement — and then your fate is up to the cops and the laws in their jurisdiction.
So what happens if you get caught?
This is where things get really murky. Although it may seem like CBD is being sold and used everywhere, the legality of it varies from state to state — only 17 states have laws specifically relating to the substance, according to ProCon.org — as do the penalties associated with it. In February 2019, both New York City and the state of Maine cracked down on the sale of food products containing CBD. And in May 2019, a 69-year-old woman was arrested for possession of Hashish after security officers at a Disney World checkpoint found CBD oil — which, she told Fox 35 Orlando, was prescribed by a doctor for her arthritis. (The charges were eventually dropped.)
Within airports, there’s been a range of law enforcement responses to CBD. As The New York Times reports, only 11 of approximately 2.8 million passengers screened by TSA at Florida’s Jacksonville International Airport in 2016 were detained for marijuana possession, but all of them were arrested or given notice to appear in court; at Denver International Airport in 2016, 29 of 54 million passengers were stopped for possession, but all avoided charges by either throwing the marijuana out or taking it home.
When you’re flying internationally, The Atlantic reports, you face a higher risk of serious charges (including deportation, if you’re a non-citizen entering the U.S.). According to NBC 5 Investigates, there’s been a recent increase in CBD-related busts at Dallas Fort Worth International Airport, with multiple international travelers getting arrested or detained for possessing products that contain any amount of THC (determined through field tests).
With the widely varying regulations, the reality is travelers can’t know what to expect. “Nobody is immune to potentially having their CBD-infused products be seized,” Nathalie Bougenies, an attorney at Harris Bricken who specializes in cannabis law, tells Mic. “Due to the really murky legal status of CBD throughout the country, we have absolutely no way of telling people whether or not it’s legal. So everytime you fly with CBD-infused products, you’re running the risk of your product being seized and potentially being charged with a felony.”
“More often than not, when the product is seized, it’s because the officers deem it a controlled substance,” she adds. “You’re not allowed, under the Controlled Substances Act, to travel with a ‘drug.’”
What if the CBD is from hemp, not marijuana?
Marijuana is classified as a Schedule I drug (“no currently accepted medical use”) under the federal Controlled Substances Act, due to its potentially high content of tetrahydrocannabinol (THC). CBD derived from marijuana falls under that classification as well, with the exception of FDA-approved medication that contains less than .1 percent of THC. Things aren’t quite as cut-and-dry with hemp-derived CBD, however, which typically contains less than .3 percent of THC. In December 2018, President Donald Trump signed into law the 2018 Farm Bill which, among other things, legalized hemp “by deeming it an agriculture crop and removing the term hemp from the definition of marijuana under the Controlled Substances Act,” Bougenies explains.
The move led many people to believe all hemp products — including CBD derived from hemp — are now legal in all circumstances, but that’s not the case. Bougenies explains that the Farm Bill created a new program allowing states to regulate hemp production within their borders — but before they can do that, they have to submit a plan to the U.S. Department of Agriculture (USDA) for approval, and they can’t do that until the USDA establishes its own set of regulations, which it has yet to do. “There’s nothing in place under the 2018 Farm Bill that...protects consumers,” Bougenies says.
The whole situation has created yet another confusing legal area when it comes to flying with CBD. Per the TSA’s Twitter responses to questions about hemp products, the agency can use its discretion to decide whether to get law enforcement involved if an agent catches you with it, just like with marijuana-based CBD. If you get caught with hemp CBD, you “can say that it’s hemp-infused and it contains less than .3% THC, but if a U.S. Customs and Border Protection officer treats it as a drug, what you’re saying won’t matter,” Bougenies says.
So how can you not get caught?
Medium notes that it’s a good idea to buy products that come with a Certificate of Analysis (COA) and an accompanying label that verify they contain less than .3% THC. Yet even if you do that, there’s no way to guarantee you won't get stopped while flying with CBD. As such, it's simply "a matter of educating yourself and being fully aware of what the state laws are in the jurisdictions that you’re going to travel to or from,” says Bougenies. Of course, that’s easier said than done, considering how complex the laws are. And even if you do your research, you won't be able to predict exactly what "officers are going to say, or how they’re going to treat your [CBD] oil,” the attorney adds.
If you’re flying with medical marijuana that you absolutely can’t go without, Bougenies suggests bringing a note from your doctor with their information, a description of the drug (explaining that it’s derived from hemp with less than .3% THC, for instance), and the reason you need it. But, keep in mind, “there are very limited circumstances under which it could be legal, and every state has a different view on whether or not the use of CBD oil is even legal for medical reasons,” Bougenies says.
The bottom line? Bougenies says your best bet is to leave the goods at home, if you're able: “I think that the risks really outweigh the benefits of traveling with CBD products right now."