Alabama AG clarifying use of Cannabidiol (CBD) and FDA-approved drugs containing CBD

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MONTGOMERY, AL (WRBL) Alabama’s Attorney General is releasing guidelines to clarify Alabama Law regarding the possession, use, sale, or distribution of CBD or Cannabidiol. The guidelines state it is illegal for CBD to be sold by any convenience store, gas station, or private individual.

The guidelines also address Alabamians medical use of the FDA-approved drugs containing CBD like Epidiolex which became legal for Alabama doctors to prescribe as of October 28th, 2018 when the Alabama Department of Public Health adopted their medical use for two forms of epilepsy.

Alabama’s AG Steve Marshall says recent questions surrounding the legality of Cannabidiol (CBD) suggest a “brief explanation and review of several relevant Alabama Criminal Laws” might be helpful to the public.

According to the World Health Organization Cannabidiol or CBD is one of several (probably 200) compounds of the cannabis plant. Detailed information on Cannabidiol from WHO can be found at this link: WHO CBD Information

In a November 20th advisory, Marshall joined with Alabama Law Enforcement Agency leadership, the Office of Prosecution Services and the Alabama Department of Forensic Sciences to draft and distribute guidance on CBD use based on current laws.

The advisory shares several sections of the Alabama Criminal code while discussing the impact of Carly’s Law and Leni’s Law which both passed by the Alabama Legislature. Both laws provide a defense for a narrow group of individuals who pass rigorous medical requirements to use Cannabidiol but are still prosecuted for unlawful possession of marijuana.

“The affirmative defenses found in Carly’s Law and Leni’s Law can only be raised by individuals prosecuted for unlawful possession of marijuana. In other words, Carly’s Law and Leni’s Law offer no “safe harbor,” even to the narrow class of individuals covered, for selling or distributing marijuana, or trafficking in marijuana. This is a conclusion of law based on a plain reading of the statute, regardless of what the Alabama Legislature may have intended,” the release stated.

The distributed information discusses the October 28th, 2018 event in which the Alabama Department of Public Health adopted a rule allowing for the medical use of FDA-approved drugs that contain CBD (i.e., Epidiolex). In other words, Epidiolex is now legal for a doctor to prescribe for the treatment of two forms of the epilepsy-Lennox-Gastaut syndrome and Dravet syndrome. While Carly’s Law and Leni’s Law provide only an affirmative defense to the otherwise illegal possession of CBD, Epidiolex will be regulated in the same way as any other prescription drug.

The following Criminal Code Sections were shared within the press release:

Section 13A-12-212 of the Alabama Criminal Code makes it illegal to possess or receive a controlled (regulated) substance, while Sections 13A-12-213 to 214 specifically address the possession of marijuana-punishable by a Class A misdemeanor when possessed for personal use or by a Class C felony when possessed for reasons other than personal use.

Section 13A-12-211 of the Alabama Criminal Code makes it illegal to sell, furnish, give away, deliver, or distribute a controlled substance, including marijuana. A violation of this section is punishable by a Class B felony. Section 13A-12-231 of the Alabama Criminal Code makes it illegal to “traffic”-sell, manufacture, deliver or bring into the state any part of cannabis (marijuana) plant in an amount greater than 2.2 pounds. This crime carries mandatory prison time that increases with the weight of the marijuana in question.

The use of the term “marijuana” or “cannabis” in each of the crimes described above includes the marijuana extract cannabidiol, or CBD.

According to the distributed information, in 2014  the Alabama Legislature passed Carly’s Law to provide an affirmative defense to a narrow class of individuals-those with a debilitating epileptic condition and who have a prescription for CBD authorized by the UAB Department of Neurology-who would otherwise be in illegal possession of CBD. The law also extends the affirmative defense to possession of CBD by a parent or caretaker of an individual who has both the required condition and prescription. The Legislature included a “sunset date” of July 1, 2019, in the law, which means that the law and its protections will no longer exist as of that date.

The effect of Carly’s Law is that an individual who has a debilitating epileptic condition and receives a prescription for CBD approved by the UAB Department of Neurology, who is then criminally prosecuted for unlawful possession of marijuana, it may be excused for his or her otherwise unlawful conduct. The same would apply to possession of CBD by the individual’s parent or caretaker. Carly’s Law did not legalize the possession or use of CBD.

Two years later, the Alabama Legislature passed Leni’s Law to provide an affirmative defense for another class of individuals-those who have a chronic or debilitating disease or medical condition that produces seizures for which a person is treated-who would otherwise be in illegal possession of CBD. For the affirmative defense to apply, the CBD must have been tested by an independent third-party laboratory.iThe law also extends the affirmative defense to possession of CBD by a parent or guardian of a minor with such a condition.

The effect of Leni’s Law is that an individual who has a chronic or debilitating disease or medical condition that produces seizures, who is criminally prosecuted for unlawful possession of marijuana for personal use,v may be excused for his or her otherwise unlawful conduct. The same would apply to possession of CBD by the individual’s parent or guardian. Leni’s Law did not legalize the possession or use of CBD.

Selling, delivering, or distributing CBD-other than the FDA-approved prescription drug Epidiolex-is illegal under Alabama law. The affirmative defenses found in Carly’s Law and Leni’s Law can only be raised by individuals prosecuted for unlawful possession of marijuana. In other words, Carly’s Law and Leni’s Law offer no “safe harbor,” even to the narrow class of individuals covered, for selling or distributing marijuana,  or trafficking in marijuana. This is a conclusion of law based on a plain reading of the statute, regardless of what the Alabama Legislature may have intended. Carly’s Law protects only the UAB Department of Neurology and the UAB School of Medicine from being prosecuted for marijuana-related crimes (like distribution) arising out of the prescription of CBD to those with a debilitating epileptic condition. It is illegal for CBD to be sold by any convenience store, gas station, or private individual.
      
The press release also states Carly’s Law and Leni’s Law include a provision that, for an individual to successfully assert the affirmative defense, the THC level of the CBD must be “no more than 3% relative to CBD according to the rules adopted by the Alabama Department of Forensic Sciences.” To be clear, all CBD- whether above or below 3% THC-is illegal under Alabama law, except for the prescription drug Epidiolex. The affirmative defense provided to a narrow class of individuals under Carly’s Law and Leni’s Law is available when the THC level is below 3% relative to CBD, but unavailable if the CBD in question has a THC level above 3% relative to CBD.

“As the law enforcement agencies of the State of Alabama and its subdivisions, it is our responsibility to interpret and enforce the law as written by the Alabama Legislature. This public notice does not address federal law pertaining to CBD, which is enforced by federal law enforcement agencies. If you have questions about this guidance or its application to your situation, please contact your local district attorney’s office,” said the press release.

Law enforcement officials with questions may contact ALEA or the Opinions Division of the Alabama Attorney General’s Office. All health-related questions should be directed to the Alabama Department of Public Health.

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