Ask The Cannabis Lawyer

Rod Kight, a cannabis attorney in Asheville, NC, keeps you (and your stash) safe from the man. Yes, he's still out there, sniffing for weed.
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Q: A friend told me that having an open jar of CBD salve in my car could get me arrested for DUI. Is this true? Do open-carry liquor laws apply to cannabis, too? 

In general, open-carry liquor laws don’t apply to CBD, and DUI laws address drunk driving—not possessing an intoxicating substance. Furthermore, hemp-derived CBD isn’t considered a controlled substance under federal law (or most state laws). So as long as you’re not wasted or in one of a handful of states (Idaho, Nebraska, and South Dakota) where it is not permitted, your CBD cream should be beyond reproach. As for marijuana, the laws vary from state to state. For example, in Colorado, it is illegal to have a marijuana container that is open or has a broken seal; the contents of which are partially removed; and there is evidence that marijuana has been consumed within the motor vehicle. Check your state government’s website for specifics. Even if the packages aren’t open, and you’re in a state where it’s legal, there may be limitations on the amount you can carry. So if you’re heading home from the dispensary with a reasonable quantity of unopened edibles, you won’t likely get in trouble. If your backseat is piled high with open packages, you might have problems if you're pulled over—even if you’re sober. 

Q: Is it legal to give CBD to my 15-year-old son? 

From a federal standpoint, yes. Hemp-derived CBD is not a controlled substance under federal law, and there are no age limits or prohibitions around its use. However, the laws regarding CBD differ on the local level. In some states, there are prohibitions on CBD. In other states, there is no age restriction on consuming hemp-derived CBD. Additionally, many school districts have banned the use of CBD on school property. Also be aware that CBD can show up on a urine screen (most test for cannabinoids in general, not just THC), so if your kid is involved in athletics, or needs to be tested for school or jobs, he could blow his screening. On another note, CBD products from full-spectrum hemp do contain trace amounts of THC, and some studies link THC use in teens with increased risk of depression and other negative effects. The amount of THC in CBD products is very low—legally, less than 0.3%—so it’s generally not a problem. If you’re concerned, opt for CBD isolates, apply the appropriate parental supervision, and check with your health care provider. 

Related: Will CBD Show Up On a Drug Test?

Q: I know it’s illegal to fly with pot, but will I really get busted for five THC gummy bears in my carry-on? And is CBD okay? 

No question about this one: Marijuana is illegal at the federal level, and flying with edibles will subject you to federal laws. Get caught with any amount, and you could be looking at a federal criminal charge with penalties ranging from six months to a year in jail, $1,000 in fines, or a combination of both. And if you’re plotting and scheming right now, you should know there’s no difference between checked luggage and carry-on bags: searches can occur in either. So what about your neighbor who routinely flies with a stash of THC lollipops? That’s more about inconsistencies between airports and strictness of the screening process, not the law itself. Furthermore, TSA’s procedures are focused on security threats (guns, bombs, power tools), not the passenger with a pocketful of THC gummies. That doesn’t mean they won’t bust you if they find them: TSA’s policy is to call in local law enforcement if you’re stopped with any amount of marijuana. What happens next depends on the state, and the airport. At Los Angeles International Airport, local law enforcement won’t hassle passengers with up to 28.5 grams of marijuana and 8 grams of concentrated marijuana, and Seattle-Tacoma Airport allows passengers to carry marijuana as long as it’s under the state’s legal limit. The bottom line: While the letter of the law says don’t fly with pot, you probably won’t get busted for small amounts of edibles. At Denver International Airport, for example, if TSA finds weed in your carry-on, they’ll contact local police; if the police decide the amount in question isn’t enough to constitute illegal trafficking, they’ll give you the option to toss it in the trash or take it back home. As for hemp-derived CBD, it’s legal—so if you’re a white-knuckle flyer looking for stress-relief at 30,000 feet, CBD gummies are a safer bet. 

Q: My employer announced it will start doing drug testing, and screening for CBD and THC. Is this legal? 

It sure is. Any employer can test for any substances, including CBD and THC, and can refuse or terminate employment on the basis of those test results. Most states operate under an employment-at-will doctrine—so if you don’t have a contract with your employer, you can be terminated for any reason (other than gender, age, race, or religion), including using THC or CBD. The right of companies to test employees for cannabis has been upheld in the courts, even in states like Oregon or Colorado where recreational marijuana is legal. So if you get fired for smoking pot, or even taking CBD for pain, it’s likely the legal system will side with your employer. 

CBD-legalization-map

Q: Can I mail pot brownies to my Aunt Bonnie in Portland? 

Probably not. Sending marijuana in any form through the U.S. Postal Service is a federal crime, even if you’re sending pot brownies from a legal state (like California) to a legal state (like Oregon). The USPS is pretty definitive about this, saying it’s “committed to eradicating illegal drugs and their proceeds from the U.S. Mail. We pursue traffickers of all forms of illegal narcotics— including marijuana, which remains illegal under the federal Controlled Substances Act and is therefore unmailable.” Shipping via UPS or FedEx carries risk, too: Using a third-party shipper removes any reasonable expectation of privacy, and FedEx and UPS reserve the right to open and inspect any package at their own discretion. The USPS, however, is bound by more stringent Fourth Amendment protections, and inspectors can’t open your parcel without probable cause and a search warrant. What’s more, both sender and receiver are liable, and both you and your aunt could be charged with trafficking and possession of a controlled substance. So will the feds bust down Bonnie's door and haul her away in handcuffs? It depends, partly on whether your aunt knew this box of goodies was onthe way; if not, you’re on your own. (Maybe your aunt will visit you in prison?) What’s more, many states determine the seriousness of the crime based on the amount of product, and law enforcement agents don’t distinguish between THC levels in a product and the weight of the product itself. So if you’re sending dense, chunky, heavy brownies, you could both be sentenced on the weight of the brownies—not the amount of marijuana in them. In other words, the better the brownie, the bigger the crime.