JACKSON, WYO – One woman faces a charge for hemp-derived cannabidiol oil despite its recent presence in local grocers
Article by: Robyn Vincent, Buckrail
JACKSON HOLE, WY – A woman driving through Jackson, Wyoming, on her way to Montana left with a life-changing souvenir. On July 8, Anita Maddux, 50, was charged with a felony for possessing a 10-milliliter sample bottle of cannabidiol (CBD) oil from Cid’s, a Taos, New Mexico, health food store. Now Maddux could face up to five years in prison and a $10,000 fine pending an August hearing.
Independent of that incident, local and state law enforcement showed up to Lucky’s Market and Jackson Whole Grocer two weeks later to inform those stores that CBD products were illegal to sell if they contain THC, the psychoactive component of cannabis. Both stores have since removed those products from their shelves.
Most CBD oil sold in stores like Lucky’s and JWG purport to contain .3 percent or less THC, an amount that does not have mind-altering effects as outlined in the 2014 federal Farm Bill. Third party lab analysis obtained by Buckrail shows that Maddux’s CBD oil was under that threshold at .06 total THC.
Indeed, as other states loosen cannabis laws and federal lawmakers sponsor legislation to do the same, Wyoming remains a dubious place to possess a hemp-derived product with even trace amounts of THC. It is a felony offense in Wyoming to sell, buy or possess more than .03 grams of CBD oil containing any amount of THC. However, manufacturers maintain that if their product contains traces of up to .3 percent it is perfectly legal, sowing confusion for state residents and retailers.
At Cid’s, Maddux worked as an herbalist in the health and wellness department where she received a sample shipment of CBD oil from Functional Remedies. The Colorado company’s CBD oil was on the shelves at Lucky’s Market in Jackson when she was arrested. Lucky’s did not return several requests for comment nor did the attorney representing Functional Remedies, Garrett Graff of Hoban Law Group.
CBD is a non-psychoactive compound found in cannabis plants with a slew of reported health benefits. The Food and Drug Administration just approved it to treat epilepsy in the form of the new drug Epidiolex. (Wyoming does allow people with intractable epilepsy to use CBD oil under the care of a licensed neurologist.)
Cannabidiol may also treat everything from Alzheimer’s disease and Parkinson’s to depression, anxiety, inflammation and pain, according to the World Health Organization. The WHO’s Expert Committee on Drug Dependence also recently said CBD does not have abuse or dependence potential.
CBD’s potential health benefits continue to emerge. According to a July 30 study in Nature, mice with pancreatic cancer that were treated with CBD and chemotherapy lived three times longer than mice treated with chemotherapy alone.
Before her drive from New Mexico to Montana to care for her mother who has stage 4 colon cancer, Maddux placed the sample bottle in her bag and didn’t give it another thought. Maddux uses CBD oil for her own chronic back pain—she has a missing disc between her L1 and L2 vertebrae. CBD oil, she said, had brought her some relief, though she took it only sporadically.
Classification and Confusion
Despite the WHO’s recent findings, in the United States, CBD is a Schedule 1 drug under the Controlled Substances Act, meaning the federal government does not recognize its medicinal uses and considers it to have a high likelihood for abuse.
That classification hasn’t stopped its proliferation.
CBD oil has fueled a multimillion dollar industry online and at health food stores across the country. In September 2017, the retail giant Target was the first mega-chain to dip its toes into the cannabidiol waters. It wasn’t a pioneer for long, though. It pulled the products from its online shelves after just a few weeks. One month later, Lucky’s made the leap, becoming the first chain natural grocer to carry CBD products.
So why are mom and pop health stores and some chain retailers carrying the products if they are illegal?
For one thing, the federal Drug Enforcement Administration hasn’t been shy about its indifference.
“While CBD currently is still Schedule 1, with our limited resources marijuana has not been our highest priority,” Barbara Carreno, a spokesperson for the DEA, told Buckrail. “It is not a priority like opioids or synthetics which are killing people.”
What’s more, Carreno said everything could change when the DEA schedules Epidiolex for medical use on September 24. A plant or botanical could have both uses that are legal and safe and uses that are not, Carreno said. As an example, she pointed to the opium poppy: “you get heroin and oxycodone from that.”
Marijuana, meanwhile, “is a plant with many extracts, THC is one and CBD is another,” she said. “CBD has a small amount of THC but it is very, very low.”
But the overarching reason manufacturers are producing and selling these products en masse is because of the 2014 Farm Bill. That bill legalized the production of hemp under state pilot programs as long as those hemp products contain less than .3 percent THC.
Under the Farm Bill, 40 states have legalized hemp programs including Wyoming. Its program is slated to begin in 2019. That confuses matters because as Wyoming works to implement a hemp cultivation program, it is still illegal to sell or possess hemp products in the state if they contain THC.
The federal program has some legal experts arguing Maddux wasn’t in the wrong. “As long as hemp was grown as part of a state pilot program (like Maddux’s Functional Remedies CBD oil) then it is federally legal,” said Jonathan Miller, general counsel to the U.S. Hemp Roundtable. That means Maddux “is allowed to take it across state lines,” he said.
Miller called Maddux’s case “unprecedented.” To his knowledge, it is the first time someone faces a felony charge for carrying a vial of CBD oil. He pointed to cases where people were arrested for possession of both marijuana and CBD. The “CBD was thrown out,” he said.
Wyoming cannabis law, Miller continued, is confusing. “It is quite unfortunate law enforcement would take that confusing law and charge someone for having a product that has virtually no THC and which the World Health Organization has classified as harmless,” he said. “I would hope law enforcement was focusing instead on drugs that kill people.”
On the national stage, Congress is moving in a direction that would remove hemp (cannabis containing less than .3 percent THC) from its classification as a Schedule I controlled substance. Sen. Mitch McConnell–R, Kentucky, is leading that charge with the 2018 Hemp Farming Act. It handily passed in the Senate 86-11 on June 28.
Wyoming, though, is fond of bucking national trends, especially when it comes to cannabis. The state has a tight grip on cannabis laws even as public opinion swings drastically in the other direction.
For example, more than 80 percent of Wyomingites say they want to see the legalization of medicinal marijuana and 60 percent oppose jailing people for marijuana offenses, according to a 2016 survey by the University of Wyoming Survey and Analysis Center.
Jackson Whole Grocer herbalist Heather Olson agreed with those sentiments. She also believes in CBD’s long list of supposed health benefits and was unhappy to remove products from the shelves. “Not only is it thoroughly therapeutic, but it is also being studied for more of its health benefits,” she said. There is a problem, though, with certain companies, she said. Officials from Wyoming’s Division of Criminal Investigation told her some of the products they tested “were way above .3 percent THC.”
But Wyoming’s crime lab—where DCI tests substances—cannot actually test for specific amounts of THC.
The Un-wild West
Local law enforcement has been in contact with Wyoming’s Division of Criminal Investigation since fall 2017 when Lucky’s and Jackson Whole Grocer began carrying CBD oil. Jackson Chief of Police Todd Smith “reached out to us and asked us for some help because these products were being sold,” said Ronnie Jones of DCI. “Then we discovered this was going on across the state.”
Since then, Jones said DCI has been visiting retail stores and conducting investigations to confirm whether those CBD products contain THC.
Local law enforcement says as long as state law dictates it, they will enforce CBD’s prohibition. “I am duty-bound to uphold those laws,” Teton County Sheriff Jim Whalen said. “Clearly, if we were to talk philosophy, I might talk differently,” he added.
Whalen did not seem convinced Maddux’s felony charge would stick. He suspected it would be pleaded down and pointed to his department’s lenient proclivities. “In terms of misdemeanors, we would prefer to write a citation and send people on their way, which is different than many municipalities.”
Law enforcement is indeed “duty-bound” by laws set forth by the Wyoming Legislature. But cannabis advocates, like Laramie attorney and Wyoming House Minority Whip Charles Pelkey–D, Laramie, point to the state’s law enforcement as a barrier to softening cannabis laws.
His colleague, Wyoming Rep. Stan Blake–D, Green River, “has introduced bills to make CBD oil readily available but we have gotten opposition from the Wyoming Association of Sheriffs and Chiefs of Police that any THC is a violation of the law,” Pelkey said.
It is true that sheriff and police associations throughout the country have pushed back against cannabis laws. Some point to Colorado’s rising crime rates since that state legalized recreational marijuana in 2014, though it is unclear if the two are related. Police Chief Smith said the notion that sheriffs and chiefs could hold that type of sway in the Legislature is absurd. “Law enforcement inherits the law from the Legislature,” he said. “We may get to testify our professional opinion but for any legislator to blame it on us is a cop out.”
The Wyoming Association of Sheriffs and Chiefs of Police’s stance on this issue, though, is hard to overlook. It actively lobbies the Wyoming Legislature against marijuana reform, including medical marijuana. The statewide interest group heads a campaign “There is no Debate” that holds community events and works with lawmakers and community leaders to propagate anti-marijuana messaging throughout Wyoming.
Its website warns that “many adults are also unaware of how marijuana harms lives, and are confused by misinformation on perceived benefits of medical use of marijuana.”
Medical professionals, on the other hand, often have different feelings about medical marijuana and its potential uses. On Harvard Medical School’s health blog, Dr. Peter Grinspoon acknowledged that medical marijuana is a subject of debate among doctors, researchers, policymakers and the public. But, he said CBD falls into its own category.
“Least controversial is … CBD because this component of marijuana has little, if any, intoxicating properties,” Grinspoon wrote. “CBD-dominant strains have little or no THC, so patients report very little if any alteration in consciousness. Patients do, however, report many benefits of CBD, from relieving insomnia, anxiety, spasticity, and pain to treating potentially life-threatening conditions such as epilepsy.”
I Fought the Law…
Back in Montana (where medical marijuana and CBD products happen to be legal), Maddux is biding her time caring for her ailing mother and going to job interviews. She does not dispute the reason why she was initially arrested, which had nothing to do with CBD oil.
On Sunday, July 8, Teton County Sheriff’s Deputy Jesse Willcox noticed her expired California license plate and pulled Maddux over. She was also driving with an expired license and without insurance. Maddux said she has led a simple life and didn’t have the money to address those issues before hitting the road. “My plan was to just get to Montana, to be with my family and take care of everything there,” she said.
According to the probable cause affidavit, Willcox asked Maddux if she could pay an $850 fine for the tickets or appear in court on July 31. The affidavit stated Maddux said she could do neither. She didn’t think that would land her in jail, Maddux said. “I have never been pulled over before. So I thought the best thing to do was just to be honest about my situation.” According to the affidavit, however, Maddux started things off on the wrong foot. She “initially told Deputy Willcox she had [forgotten] her driver’s license at a house where she was staying but later admitted her license was significantly expired.”
After he deemed her “a flight risk” because she could not pay the fines and was likely to not appear in court, Willcox arrested Maddux. It was her first encounter with the law. A July 30 background check on Maddux showed she has no criminal history.
At Teton County jail, personnel found her CBD oil and used a NIK test to determine the presence of THC. NIK tests are “rudimentary,” as Smith put it, however. They only confirm the mere presence of THC, not the actual amount. The oil, then, was sent to Wyoming’s crime lab for “analysis” and Maddux sat in jail for roughly 36 hours. She was released on a $1,000-dollar bond.
Life has already changed for Maddux. To help pay for an attorney, she sold her Toyota Tercel for $550 and is now relying on the generosity of friends to make ends meet. Maddux worries the volunteer and service work that has become a large part of her identity will no longer be an option if she is convicted of a felony. She worked as a disaster relief volunteer in Haiti after its 2010 earthquake and in the Philippines after its 2013 typhoon.
She also volunteered as a yoga instructor teaching yoga to inmates in Oregon prisons. Maddux’s experience in Jackson has her wondering about some of those inmates and their predicaments. In other words, had she lacked the resources and life experience to question what happened and obtain a lawyer, Maddux said she could have slipped through the cracks of the legal system.
While local law enforcement seems confident a felony will not stick on her record, Maddux said in the meantime she agonizes about her August 16 hearing. Her life “has been thrown into upheaval.”