Alabama Attorney General Steve Marshall issued guidance on the legality of cannabidiol (CBD) last week, though local law enforcement says the products haven’t been a big focus in Mobile.
Cannabidiol (CBD) is a derivative of marijuana, though it does not contain the tetrahydrocannabinol (THC) that gives the plant its psychoactive effects. In recent years, Alabama has loosened its laws to allow CBD oils to be used in the treatment of epilepsy and severe seizures.
Carly’s Law and Leni’s Law were passed in 2014 and 2016, respectively, named after patients championing alternative treatments. The laws created a very limited window for a small number of designated patients to treat epilepsy and other specified illnesses with CBD.
In practice, the laws simply created a path to excuse what state law would otherwise consider to be possession of marijuana, and even those patients can only use products containing no more than 3 percent THC.
According to Marshall, neither law legalized the possession or use of CBD in Alabama.
Yet, spokesperson Mike Lewis said there have been “an increasing number of public questions about the legality of CBD product sales” in stores and online. In a public notice on Nov. 20, Marshall’s office issued guidance on the legality of CBD oils in a joint effort of the Alabama Law Enforcement Agency, the Office of Prosecution Services and the Department of Forensic Sciences.
“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,” the notice reads. “This is a conclusion of law based on a plain reading of the statute, regardless of what the Alabama Legislature may have intended.”
The most recent change in Alabama law governing CBD products came less than a month ago when the Alabama Department of Public Health adopted a rule allowing for the medical use of FDA-approved drugs containing CBD, which of there is only one: Epidiolex.
With the change, doctors in Alabama can now prescribe Epidiolex to patients being treated for Lennox-Gastaut syndrome or Dravet syndrome, rare but severe forms of epilepsy.
“Epidiolex will be regulated in the same way as any other prescription drug,” the guidance from Marshall’s office reads. “Selling, delivering or distributing CBD — other than the [Food and Drug Administration]-approved prescription drug Epidiolex — is illegal under Alabama law.”
The maker of Epidiolex, GW Pharmaceuticals, has undertaken substantial lobbying efforts in several states evaluating CBD regulations in recent years — often working ensure that only CBD products approved by federal regulators are legally sold in those states. Alabama is no exception.
According to the Ethics Commission, the company is registered as a principal lobbyist in Alabama and works through Windom, Galliher & Associates — a prominent lobbying firm founded by former Republican Lt. Gov. Steve Windom.
According to the Fair Campaign Practices filings, Windom, Galliher & Associates contributed to several political action committees and Republican candidates including Marshall, who received at least $7,500 from the firm in two separate contributions in August and October.
However, most laws concerning CBD products were passed years ago, and there has indeed been some confusion surrounding them. According to statewide media reports, law enforcement officials in Jefferson County were under the impression products containing no THC were legal to sell and possess as recently as September.
A few days before those reports were published, prosecutors in Lauderdale County were telling reporters all CBD products were illegal in Alabama and announced a local effort to crack down on convenience stores and distributors selling them in that area.
Targeting those selling or using CBD oils illegally doesn’t seem to have been a primary focus of local law enforcement, though the Mobile Police Department is aware of the attorney general’s memo.
“We have not made any recent arrests, but this is on our radar,” an MPD representative said.
According to MPD’s narcotics unit, only The University of Alabama at Birmingham is allowed to dispense CBD under state law, and only those with “a diagnosed neurological disorder that produces debilitating or life-threatening seizures” can legally possess CBD products.
However, MPD has previously seized CBD products as part of larger enforcement efforts aimed at curtailing the sale of drug paraphernalia in convenience stores. In March 2017, officers seized pipes, bongs, CBD oils and other substances during organized raids at 10 businesses.
At the time, Mobile Public Safety Director James Barber said some of those products had tested positive for THC. Mobile County District Attorney Ashley Rich did not immediately respond to requests seeking information about the number of cases her office has prosecuted against those possessing or selling CBD.
Marshall’s full public notice on Alabama’s CBD laws is available below: