CBD Arrests Flying High at Dallas-Fort Worth International Airport
At North Texas’ busiest airport, the fourth largest in the country, customs officers will detain international travelers, and seize their CBD, if a quick field test shows it to contain even a small trace of THC
By Scott Friedman and Jack Douglas Jr. • Published on April 25, 2019 at 4:09 pm
What to Know
- Traveling with CBD oil or hemp-based derivatives could you get arrested at the airport.
- While CBD does not contain enough THC to give anyone a high, it can be enough to test positive.
- With CBD laws differing state-to-state, including in Texas, travelers face a confusing patchwork of enforcement.
As Texas legislators work towards possibly making CBD legal in the state, confiscation of the oil by federal officers has “skyrocketed” this year at DFW Airport, NBC 5 Investigates has learned.
In some cases, passengers have been jailed on felony drug possession charges for a single bottle of CBD.
“I would say a year ago it was almost non-existent,” said Cleatus Hunt Jr., port director at the airport for the U.S. Customs and Border Protection.
“But in the last six months, the interception rate for that (CBD) has skyrocketed,” Hunt said in an interview.
Shops that sell CBD, which can contain small amounts of THC, have popped up throughout North Texas, and across the state.
And just this week, members of the Texas House voted in support of making the oil legal — a move that has already taken place in some other states — paving the way for consideration in the Senate.
But at North Texas’ busiest airport, the fourth largest in the country, customs officers will detain international travelers, and seize their CBD, if they feel it contains THC — the ingredient in marijuana that produces a high.
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A drug-sniffing dog showed interest in a traveler’s backpack, prompting a search by a customs officer who found an e-cigarette cartridge. The traveler said he bought the e-cigarette at a CBD shop in Dallas.
An on-the-spot test for THC came back positive.
CBD oil, which has become a health craze in Texas and throughout the country, is made from hemp — the cannabis cousin to marijuana — and can contain trace amounts of THC.
CBD users say the oil has a multitude of health benefits, from soothing aches and pains to relieving anxiety, but that there is not enough, if any, THC to make them high.
That doesn’t matter, said Hunt, adding that any THC found at the airport can result in a DFW police bust.
“So one single incident, one single small amount of CBD oil that you thought was cool to take on a trip with you, could result in life-changing affects for you,” the customs port director said.
NBC 5 Investigates obtained police reports at the airport detailing some of the cases in which travelers were caught with CBD, including a 71-year-old woman who was jailed on a felony charge after telling authorities the vial in her bag was “CBD oil which she used as medicinal pain relief.”
Another case involved a 22-year-old college student from Collin County who was caught after officers “conducting a random bag check . discovered a brown bottle labeled “hemp CBD.”
But the lead lawyer for the U.S. Hemp Roundtable, which supports the legalization and growth of the CBD and hemp industries, said no one should be detained for possessing the oil.
Attorney Jonathan Miller, who also represents one of the travelers arrested at DFW Airport, said the federal farm bill signed into law last year makes it legal for people to transport CBD products made from hemp.
“Federal law is very clear. And when a Customs official pulls someone over for this, he or she is acting in the wrong,” Miller said.
He said of customs officers: “I am hopeful they can use their resources and their time on things that actually hurt people.”
A spokesperson for Customs and Border Protection had a different opinion on the law, however, saying, “CBD oil is considered a controlled substance under U.S. Federal law.”
“Travelers found in possession of controlled substances at U.S. ports of entry can face arrest, seizures, fines, penalties or denied entry,” the spokesperson said.
In Texas, state law on CBD is murky, with the legislature currently debating a bill that would clear up the confusion and legalize CBD.
In the meantime, some state law enforcement agencies have said they will arrest and prosecute people found in possession of CBD.
But with different laws in each state, travelers face a confusing patchwork of enforcement that could land them in jail, depending on where they are in the country.
At airports, the Transportation Security Administration tells NBC 5 Investigates it will also notify airport police if TSA screeners find CBD oil during routine checks of passenger bags.
For those reasons, federal authorities are urging international travelers to leave the CBD at home, not in the suitcase.
And for anyone still thinking about taking CBD to DFW Airport, Hunt suggested, “. don’t do it. It simply isn’t worth it.”
Is CBD oil illegal? Confusion reigns over South Dakota’s law
The legality of selling and possessing CBD oil in South Dakota is murky after a changed state law has resulted in differing opinions.
As the state Legislature was concluding its work in March, new state Attorney General Jason Ravnsborg announced that all forms of CBD, also called cannabidiol, oil are illegal in South Dakota.
But prosecutors responsible for potentially charging people with selling and possessing CBD oil aren’t as certain. Some businesses in Sioux Falls are stocking CBD oil, while others have pulled it from their shelves and business owners say customers are uncertain about whether they can legally purchase it.
Joshua Sopko started selling several forms of CBD oil in his Sioux Falls store Juniper a couple weeks ago because customers were consistently ask for it and it fit with the store’s mission of providing natural healing products. His products come from a company that processes it from hemp seed to the final product, so he knows its origin. He said he believes it’s legal to sell CBD oil in South Dakota, but he’s still concerned that he could be arrested and prosecuted for it.
“I don’t believe the state has any right to legislate something like this. It’s a supplement. It’s no different than vitamin water or 5-Hour Energy or any number of essential oils that people take on a daily basis,” Sopko said.
Legislative changes leave ‘gap’
The 2018 federal Farm Bill federally legalized hemp, a variety of the cannabis plant that can be harvested for cannabidiol, which doesn’t have intoxicating effects.
Although products containing CBD are growing in popularity nationwide, there’s few federal guidelines in place yet. The U.S. Department of Agriculture is expected to release hemp guidelines this fall and the U.S. Food and Drug Administration has formed a working group to study how CBD can be legally marketed.
In 2017, the South Dakota added cannabidiol to the state controlled substance schedule — a list of substances tightly monitored by the government because they can be abused and cause addiction. At the same time, they exempted “cannabidiol, a drug product approved by the FDA” in the definition of marijuana.
Lawmakers reversed that decision this year by eliminating cannabidiol from the state schedule to mirror federal law, which doesn’t have cannabidiol on the controlled substance schedule. But they didn’t alter the definition of marijuana.
The Legislature also defeated the bill to legalize industrial hemp this year, which would have clearly legalized CBD oil in the state.
The changes have left “a gap” in the state’s controlled substance laws, according to Minnehaha County State’s Attorney Aaron McGowan and Lincoln County State’s Attorney Tom Wollman
“This gap has left the legality of CBD oil products open to different interpretations,” they said in a joint statement.
Pennington County State’s Attorney Mark Vargo said he has decided to not prosecute any cases involving CBD oil because he doesn’t believe state law as its written now criminalizes CBD — as long as the product truly contains CBD and isn’t marijuana.
“If it really is just the CBD oils made from the seeds of marijuana or hemp, those aren’t illegal under South Dakota statute,” he said.
Ravnsborg’s March 25 announcement stated that use or possession of all forms of CBD oil are illegal under state law except for the FDA-approved prescription drug Epidiolex, which is used to treat a rare form of epilepsy.
Ravnsborg’s determination was based on the definition of marijuana in the controlled substances schedule and the law defining controlled substance crimes in the state, said Tim Bormann, Ravnsborg’s chief of staff. Ravnsborg’s position is that “CBD oil is a product of the marijuana plant, the genus cannabis plant,” he said.
The Legislature, not the executive branch, decides state laws and the legislative branch removed CBD from state law, Vargo said.
“The executive branch shouldn’t be governing by presumption,” he said.
He said the different opinions mean Pennington County residents don’t know whether they can legally possess CBD and if the Attorney General’s Office could prosecute the cases if he doesn’t.
McGowan and Wollman have been discussing with law enforcement about how to handle cases involving CBD oil. They’re reviewing it on a case-by-case basis and haven’t made any permanent decisions about the topic, they said in the statement.
“In the meantime, any individual or business engaging in manufacturing, distributing or possessing such substances should err on the side of caution,” they said.
How to clarify the depends on whether the Legislature intends for CBD to be legal, Vargo said. Lawmakers could put stopgaps into law treating CBD similarly to an over-the-counter drug if they are concerned about product quality control, or they could add CBD back into the felony controlled substance list or write CBD into law as a misdemeanor.
“They had a lot of different options available to them and when they removed CBD from Schedule IV, they did not utilize any of them,” Vargo said.
Already, a felony charge over CBD
Laws about CBD oil and how they should be applied to cases “are confusing at best,” and when the American Civil Liberties Union started digging into it after Ravnsborg’s March announcement, “it felt like we opened a can of worms,” said Libby Skarin, policy director at the ACLU.
One person in Minnehaha County is currently facing a Class 5 felony charge for possessing CBD oil — Alaska resident Bernard Davis, 57, was arrested earlier this month for having CBD oil at the Sioux Falls Regional Airport, according to his attorney Clint Sargent.
Although the ACLU isn’t involved in that case, Skarin pointed out that a felony conviction carries prison time and having a felony record can affect a person’s life and employment.
Melissa Mentele, executive director of cannabis reform group New Approach South Dakota, said the Legislature “can’t put the horse back in the barn” at this point because there’s too many residents using CBD oil.
“It’s as illegal as the water coming out of your tap,” Mentele said. “It is not illegal in South Dakota. You can’t prosecute a case on a law that does not exist.”
Sopko said he’d like to see clarification of the state law. One of the biggest problems is that customers are scared of CBD oil because of the different legal opinions in the state right now. He said he believes it’s morally wrong for the state to dictate that they can’t sell a product when the market is demanding that product.
“People come in and they’ll ask me all about it and then say, ‘Well, I don’t want to have to hide this from the cops,'” he said.
The different opinions puts people at risk of breaking the law without realizing that they’re doing it, Skarin said. “Ignorance of the law is no defense” is typically true, but that’s not the case when it comes to CBD oil in South Dakota, she said.
“It’s not ignorance of the law, it’s not even being able to understand or we can’t even agree as South Dakotans what our law means — and we’re setting people up to fail and end up in prison or possibly with felony records for something that is completely inappropriate to have that kind of response to,” she said.