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.
Cannabis	a. 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.
Hemp	a. 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 Hemp	a. Canadian hemp is an herb. b. The root is used for medicine.
Hemp Agrimony	a. 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.

Uniform Code of Military Justice

The US military has a zero-tolerance policy when it comes to illegal drugs. Under Article 112a of the Uniform Code of Military Justice (UCMJ), anyone who wrongfully possesses, uses, manufactures, imports, or distributes certain controlled substances can be court-martialed and face up to five years in prison, among other penalties.

What is Article 112a?

Article 112a consists of seven elements related to controlled substances. They are:

Possession
Use
Distribution
Introduction into a military installation, vessel, vehicle, or aircraft
Manufacturing
Possession, manufacture, or introduction with intent to distribute
Importation into and exportation from the US

There are some similarities between Article 112a offenses and civilian drug charges. First, the substances involved should be controlled ones. Second, the actions involving the drug (use, possession, etc.) were wrongful under the circumstances. Thirdly, defendants accused of manufacturing, importing, exporting, and distributing controlled substances are punished more severely than users.

It is important to note that, to be punished under this article, the servicemember’s action must be wrongful. Wrongfulness is defined as without legal justification or authorisation.

What are the Maximum Penalties for Article 112a Violations?

The maximum punishment for those convicted depends on the controlled substance involved, the amount at issue, and the activity or status of the servicemember when the illegal action(s) occurred. For example, any personnel convicted of wrongfully using, possessing, manufacturing, or introducing the following substances can be dishonourably discharged, forfeit all pay and allowances, and be imprisoned for up to two years:

Marijuana (with use or possession, the amount must be under 30 grammes)
Phenobarbital
Schedules IV and V drugs

When the following substances are involved, the penalties are dishonourable discharge, forfeiture of all pay and allowances, and imprisonment for up to five years:

Marijuana (except use or possession of under 30 grammes)
Amphetamine
LSD
Cocaine
Heroin
Opium
Methamphetamine
Secobarbital
Phencyclidine
Schedules I, II, and III drugs

Five years will be added to the maximum term of confinement if, at the time of the alleged offense, the defendant was:

On duty as a lookout or sentinel on board a military vessel or aircraft or at a missile launch facility
Serving in time of war
On duty in a military confinement facility
Receiving special pay under 37 U.S.C. § 310

Simple cases of use or possession are handled via administrative action, such as nonjudicial punishment or a summary court-martial. More serious cases typically result in a special or general court-martial.

What is Article 92?

Article 92 defines disobeying a direct order as three types of offenses:

Violations or failures to obey lawful general orders or regulations;
Failures to obey other lawful orders; and
Dereliction of duty.

Article 92 charges are common in many prosecutions. It does not take very much effort for the government to find an allegation under Article 92 in most cases.

For charges related to violating or failing to obey lawful general orders or regulations, most defences will focus on defects in the regulation. That particular provision does not require that the accused have specific knowledge of the order or regulation. In that regard, one of the only areas of attack is usually to attack defects in the regulation.

You can find further information here.

What is the Potential Effect on a Military Career?

In the US military, having a gramme of marijuana in your possession can be enough to destroy a promising future.
Not only can you face military penalties that strip you of your healthcare and retirement benefits but, depending on the circumstances, you could also face felony charges in a civilian court.
The maximum possible punishment associated with violations of Article 92 depends upon the specifics of the violation itself.
A violation of or failure to obey lawful general order or regulation may result in a dishonourable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

US Military, THC, CBD PA Visual Aid (1)Download

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 117^th 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.