Can CBD Products be Used by Current and Veteran Military Personnel?

Introduction

People use CBD products for a variety of reasons including constipation, high cholesterol, eczema, arthritis, and many other conditions, but there is no good scientific evidence to support these uses. However, that has not stopped the growth of the CBD industry, reportedly reaching a global market value of $5.18 billion dollars in 2021.

One should not confuse hemp with Canadian hemp, hemp agrimony, cannabis, or CBD as these are not the same. Unlike cannabis, it is legal to sell hemp and hemp products under federal law in the US.

Before moving on, do you understand the difference between THC, cannabis, hemp, and CBD? If not, then the next bit is for you.

Defining the Terms

What is?Description
Tetrahydrocannabinol (THC)a. THC is the principal psychoactive constituent of cannabis and one of at least 113 total cannabinoids identified on the plant.
b. Although the chemical formula for THC describes multiple isomers, the term THC usually refers to the Delta-9-THC isomer with chemical name-trans-Δ⁹-tetrahydrocannabinol.
c. THC is primarily responsible for the ‘high’ associated with cannabis.
Cannabisa. Cannabis refers to a group of three plants with psychoactive properties, known as Cannabis sativa, Cannabis indica, and Cannabis ruderalis.
b. When the flowers of these plants are harvested and dried, you are left with one of the most common drugs in the world.
c. Some call it weed, some call it pot, and others call it marijuana.
d. Legally, marijuana refers to cannabis that has more than 0.3% THC by dry weight.
e. Although illegal at the federal level, recreational marijuana – also known as adult-use marijuana – was first legalised in Colorado and Washington in 2012.
Hempa. Hemp (Cannabis sativa) is the same species of plant as cannabis.
b. Unlike cannabis, hemp contains low levels of THC, less than 0.3%.
c. Both hemp and cannabis also contain cannabinoids such as CBD, cannabidivarin (CBDV), cannabigerol (CBG), and others.
d. The Agriculture Improvement Act of 2018 established the specific definition of hemp versus cannabis by limiting the THC content of hemp to no more than 0.3% (refer to Public Law 115-334 below).
e. Hemp seeds contain fats, protein, and other chemicals.
Cannabidoil (CBD)a. CBD is a cannabinoid that has become increasingly popular since hemp was federally legalised.
b. Many people use CBD products because CBD is said to have numerous health benefits.
c. CBD is found in some amount in all cannabis plants.
d. This means it can be derived from either hemp or marijuana.
e. However, CBD products are only federally legal if they are derived from hemp and contain less than 0.3% THC.
Canadian Hempa. Canadian hemp is an herb.
b. The root is used for medicine.
Hemp Agrimonya. Also known as ‘Raspberries and Cream’, Hemp-agrimony displays ‘frothy’ clusters of tiny, pink flowers on top of long, reddish stems.
b. Its leaves look like those of Hemp, although it is not related.

While science does not differentiate between hemp and cannabis, the law does. And this is what we are going to look at next.

What is the US Federal Law Perspective?

On 20 December 2018, then President Donald Trump signed into law the Agriculture Improvement Act 2018 (commonly known as the 2018 Farm Bill; Public Law 115-334). This Act excluded hemp products from the definition of marijuana and legalised THCs in such products.

Public Law 115-334 states:

The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta- 9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

What is the Role of the FDA?

The US Food and Drug Administration (FDA) does not determine or certify the THC concentration of commercially-available hemp products, such as CBD. As such, CBD products are not approved by FDA for the diagnosis, cure, mitigation, treatment, or prevention of any disease.

However, it has approved CBD formulations as drugs, available by prescription, for the following:

  • Dronabinol (trade names: Marinol, Syndros, Reduvo, and Adversa): Approved by the FDA on 31 May 1985 as safe and effective for HIV/AIDS-induced anorexia and chemotherapy-induced nausea and vomiting only.
  • Cannabidiol (Epidiolex): Approved by the FDA in 2018 for the treatment of two epilepsy disorders.

While the Agriculture Improvement Act 2018 removed hemp and hemp extracts (including CBD) from the Controlled Substances Act, the marketing and sale of CBD formulations for medical use or as an ingredient in dietary supplements or manufactured foods remains illegal under FDA regulation, as of 2021.

You can find further information on FDA regulation of cannabis and cannabis-derived products (including CBD) here.

What is the US State Law Perspective?

Public Law 115-334 (Sec. 10114) does not allow States to prohibit the interstate (or through State) commerce of hemp or hemp products, or their transportation or shipment (providing this is done in accordance with the law).

However, State laws vary, for example:

  • In some states, it is allowed to be used medically and recreationally;
  • In other states, it may only be used medically; and
  • In some states, it is still completely illegal.

With regards marijuana, 20 States between 2012 and 2021 legalised the medical and/or recreational use of marijuana.

What is the US Military Perspective?

On 26 February 2020, the Department of Defence’s Office of the Under Secretary of Defence published a memo stating that military departments were to adopt punitive general orders, by 01 March 2020, and enforceable under Article 92 of the Uniform Code of Military Justice:

“prohibiting the use by active duty Service members and the members of the Reserve Components of products made or derived from hemp, including CBD, regardless of the product’s THC concentration, claimed or actual, and regardless of whether such products may lawfully be bought, sold, and used under the laws applicable to civilians, and regardless of the route of administration or use” (DOD, 2020, p.2).

Reserve components include the regular reserves and national guard but not, generally, the civilian auxiliaries and state defence forces (e.g. State guards and State naval militias).

The DOD memo stated that CBD products “create a serious risk to the viability of the military drug testing programme for a number of reasons.” (DOD, 2020, p.1).

The reasons given include:

  • The FDA does not determine or certify the THC concentration of commercially-available hemp products; and therefore
  • CBD products can contain appreciable levels of THC, yet omit any reference to THC on the product label and/or list an inaccurate THC concentration; meaning
  • Hemp products could effectively undermine the DODs ability to identify illicit THC use (i.e. personnel could have a positive urinalysis result from the normal use of a legally sold CBD product with less than 0.3% THC).

The memo effectively bans military personnel from using “products made or derived from hemp, including CBD, regardless of the product’s THC concentration, claimed or actual, and regardless of whether such products may lawfully be bought, sold, and used under the laws applicable to civilians, and regardless of the route of administration or use.” (DOD, 2020, p.2).

However, there are exceptions:

  • Pursuant to legitimate law enforcement activities;
  • Authorised personnel in the performance of medical duties;
  • Personnel without knowledge that the product was made or derived from hemp, including CBD, where that lack of knowledge is reasonable;
  • Rope or clothing (and other durable goods containing hemp); and
  • Prescription drugs approved by the FDA.

What about Veterans?

Can veterans use CBD products? The answer will depend on where they transition to from active duty.

  • From active duty to a reserve component, no.
  • Active duty to a civilian job, generally yes.

Summary

Hemp plants and marijuana plants are both the same species, but there is a distinct legal difference. Legally, hemp is defined as a cannabis plant that contains 0.3% or less THC, while marijuana is a cannabis plant that contains more than 0.3% THC. CBD can be derived from both hemp and marijuana plants, and many people use CBD products for their purported health benefits.

Although military personnel are banned from using CBD products, there are exceptions. Veterans in civilian roles (and civilians) are generally okay to use CBD products but should check State laws, as State laws vary even though it is legal federally.

References

Agricultural Act of 2014 (Pulbic Law 113-79): 07 February 2014.

Agricultural Marketing Act of 1946 (Title II of the Act 14 August 1946), as amended through Public Law 117-103 (enacted 15 March 2022).

Agriculture Improvement Act of 2018 (Public Law 115-334): 20 December 2018.

Controlled Substances Act 1970 @ http://www.naabt.org/documents/controlled-substances-act.pdf.

CRS (Congressional Research Service) (2021) The Controlled Substance Act (CSA): A Legal Overview for the 117th Congress. Available from World Wide: https://sgp.fas.org/crs/misc/R45948.pdf. [Accessed: 20 August, 2022].

DOD (Department of Defence). (2020) Adoption of Punitive General Orders to Address Use of Hemp Products. Available from World Wide Web: https://www.opss.org/sites/default/files/downloadable/Adoption%20of%20Punitive%20General%20Orders%20to%20Address%20Use%20of%20Hemp%20Products%20(26Feb2020)%20OCR.pdf. [Accessed: 20 August, 2022].

FDA (Food and Drug Administration). (2021) FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidoil (CBD). Available from World Wide Web: https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd. [Accessed: 20 August, 2022].

Federal Crop Insurance Act of 1980, Sections 508, 518, and 522.

Federal Food, Drug, and Cosmetic Act of 1938.

Hemp Farming Act of 2018 (proposed law): Its provisions were incorporated in the Agricultural Improvement Act of 2018.

Marihuana Tax Act of 1937 (Public Law 75-238): 02 August 1937.

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