When it comes to flying on airplanes in the United States, strict regulations affecting everyday items such as water bottles and nail clippers are enforced by the Transportation Security Administration (TSA).
The TSA updated its medical marijuana policy in May 2019 to include more specifics on flying with hemp-derived CBD, several months after hemp was removed from the U.S. government's Controlled Substances Act.
What TSA Says About CBD
The TSA allows passengers to bring CBD through security checkpoints, as long as the hemp-derived CBD contains less than 0.3% THC or is approved by the FDA. Its complete medical marijuana policy, as it appears on TSA's website, explains the specific circumstances that CBD is allowed through security.
The updated section, found under the federal agency's “What Can I Bring” webpage: “Products/medications that contain hemp-derived CBD or are approved by the FDA are legal as long as it is produced within the regulations defined by the law under the Agriculture Improvement Act 2018.”
The sole hemp-derived CBD product approved so far by the FDA, Epidiolex, is primarily why the TSA made the clarification to its medical marijuana rules, according to Marijuana Moment. The agency wanted to avoid confusion for families who are traveling with Epidiolex for pediatric epilepsy.
A TSA spokesperson wrote in an email to Marijuana Moment: “TSA was made aware of an FDA-approved drug that contains CBD oil for children who experience seizures from pediatric epilepsy. To avoid confusion as to whether families can travel with this drug, TSA immediately updated TSA.gov once we became aware of the issue.”
This means that marijuana, non-hemp-derived CBD products, and CBD products with more than 0.3% THC are still not allowed. That being said, the TSA posted on Instagram on April 20, 2019 that they did not look for cannabis. The full caption reads: “Let us be blunt: TSA officers do not search for marijuana or other illegal drugs. Our screening procedures are focused on security and detecting potential threats. But in the event a substance appears to be marijuana or a cannabis infused product, we're required by federal law to notify law enforcement.”
Is Flying with CBD Legal?
But what if it's a hemp-derived CBD product? In May 2019, the TSA Twitter account tweeted “Products that contain hemp-derived CBD oil or are FDA-approved are generally legal and can fly.”
The term “generally legal” is still not as clear as consumers and travelers would like it to be. Its guidance continues to say that travelers found with CBD are at the will of what TSA agents decide to do.
“Until the law is fully clarified at the federal and state level it's best not to bring CBD products on airplanes,” said Griffen Thorne, a Los Angeles-based attorney for Harris Bricken who specializes in cannabis law.
“If a product contains a higher amount of THC than 0.3%, then it may be legally considered marijuana, which is still a Schedule I substance under the Controlled Substances Act (CSA) and traveling with such products could subject consumers to criminal liability,” Thorne said.
Thorne told Weedmaps News why this legal burden is falling on consumers: “The Food and Drug Administration and a number of states, including California, have taken the position that certain products containing CBD are not lawful to sell. These positions typically apply to producers or sellers, as opposed to consumers.
“The effect is that because the legal status of many CBD products hasn't yet been worked out, products aren't regulated. Without regulation, there is very little oversight in many states as to what goes into a CBD product,” Thorne said.
What's The Risk?
So what happens if TSA security officers finds CBD on you? It calls the local authorities and from there, that's where the story differs.
While the federal law views hemp-derived CBD items as legal, some individual states and cities still have still more strict laws. In rare but documented arrest cases, local law enforcement officers will arrest and charge travelers upon arrival.
“If TSA or any other authorities at an airport find something that they believe contains marijuana, then that could subject a consumer to criminal liability,” Thorne said. “Additionally, if someone carrying CBD is destined for a state or country that outlaws it, that person could be subject to arrest.”
A May 2019 Florida arrest, which garnered national headlines, highlights this consumer confusion: Hester Burkhalter, a 69-year-old grandmother who suffers from arthritis, was arrested after she was found in possession of CBD oil at Walt Disney World in Orlando, Florida, by an off-duty Orange County sheriff. She was recommended to try CBD oil by her Tennessee doctor. Burkhalter spent 12 hours in custody and was released on $2,000 bond.
In Florida, CBD is legal for medical purposes, but patients must have a medical card issued by the state to be protected. Florida prosecutors dropped the charges against Burkhalter in May 2019. Burkhalter's lawyer announced plans to file a lawsuit against Disney and the Orange County Sheriff's Office.
A similar case in Texas led to charges being dropped following an arrest. Lena Bartula, 72, was arrested at Dallas-Fort Worth International Airport (DFW) on her way to Oregon. When she was told she was being arrested, Bartula told Dallas-Fort Worth NBC affiliate KXAS-TV: "I think I almost laughed out loud, because I thought that couldn't really be.”
Two others were arrested for CBD oil possession at DFW. Currently, both of those cases are still pending.
Even New York City said it's cracking down on CBD-infused food items, and violations carry a $200 to $650 fine. The state's Department of Health & Mental Hygiene is awaiting the ruling from the FDA, which concluded public comments on CBD July 16, 2019.
Non-citizens entering the U.S. run an even higher risk, Thorne explained. “For foreign citizens entering the United States, if a CBD product contains a sufficient amount of THC to be deemed marijuana, that could bar their entry into the U.S.,” he said.
CBD On Airplanes
The Federal Aviation Administration (FAA) clarified its stance on CBD recently after receiving many inquiries, particularly on whether pilots are allowed to use CBD products. The short answer: no.
For the FAA, nothing has changed and pilots aren't allowed to test positive for THC for any reason, which extends to not being able to consume CBD.
The Federal Air Surgeon’s office has received a number of inquiries about marijuana. Be aware that federal law — not state law — governs FAA medical and pilot certification. Read more: https://t.co/U2IulKewMf pic.twitter.com/3sPxGb0PBB
— FAA Safety Briefing (@FAASafetyBrief) June 18, 2019
The FAA, responding to a tweet in the thread, followed up “Simply put ... we need to understand much more before considering the use of marijuana and its derivatives for airman certificate holders because there is more at risk.”