The arrest of Cajun Cannabis owner Travis DeYoung has raised concerns and reignited debate about the web of legal boundaries and law enforcement oversight of CBD products in the Acadiana area and across Louisiana.
CBD, or cannabidiol, is a compound found in the cannabis plant and can be extracted either from hemp or marijuana, two varieties of cannabis.
DeYoung was arrested after Lafayette Parish Sheriff’s deputies executed a traffic stop on his vehicle and searched his storefront April 24, seizing CBD gummies, oils and other products. He was booked into Lafayette Parish Jail on 17 counts, including felony marijuana possession and weapons charges.
There was public outcry that DeYoung was targeted for selling a product advertised at other local establishments and in national retail chains like Bed Bath and Beyond, who has sent mailers advertising CBD oils to Acadiana residents in recent weeks.
The confusion stems from conflicting state and federal laws and differing enforcement actions that don’t address CBD possession and distribution equally for all parties, as well the opening of CBD shops that appear to operate legally.
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The popularity of CBD has grown significantly in recent years as users tout its health benefits for a variety of ailments and champion the product as a natural alternative to pharmaceutical treatments.
Excitement around the product increased after the passage of the 2018 Farm Bill, a piece of federal legislation that legalized the production of industrial hemp and legally differentiated hemp from marijuana. The Congressional Research Service defines hemp as containing less than 0.3 percent THC, the psychoactive chemical in cannabis that produces a high.
The federal Food and Drug Administration has issued statements clarifying that Congress still grants the FDA exclusive oversight of cannabis and cannabis-derived products, including CBD. FDA Commissioner Dr. Scott Gottlieb said the agency is still determining how to regulate the industry.
Many took the federal legalization of industrial hemp as a stamp of approval for hemp-derived CBD, but that’s not quite accurate, Louisiana Office of Alcohol and Tobacco Control Deputy Commissioner Ernest Legier said.
The federal law also leaves discretion to the states and doesn’t automatically preempt individual states’ interests. Under Louisiana law, hemp-derived CBD remains an illegal product because state law does not distinguish between hemp and marijuana, Legier said.
There’s proposed state legislation that would bring state laws in line with the federal Farm Bill, but nothing has passed yet, he said.
The ATC and the Louisiana Board of Pharmacy are the primary agencies handling regulation of CBD products in the state. The two organizations have issued guidance in recent months calling for their licensees to cease distribution of CBD products.
Legier said the agency’s position on hemp-derived CBD products was originally more flexible. Until last fall, he said, the enforcement agency was working with representatives from the CBD industry to establish standards for CBD products that could be sold in the state.
The organization established a banned list and any products that appeared on the list were barred from sale by ATC licensees. Items were added to the list if tests revealed any percentage of THC, other controlled dangerous substances or illicit ingredients, Legier said.
A brand of CBD product would only need to test positive for illicit substances once before its addition to the banned list, he said.
Legier acknowledged it wasn’t an ideal system, but said it was the best the organization could manage until a formal regulation system is established for the CBD products coming into the state.
After the passage of the 2018 Farm Bill, Legier said, CBD products began flooding into the state at a higher rate than the agency was able to track. Rather than test every product entering licensee’s businesses, the agency chose to end the sale of CBD altogether, he said.
Legier said there’s been push back from CBD manufacturers, distributors and retailers, but with no centralized regulation the agency can’t confirm what’s in its licensee’s products. He said the agency has tested products that marketers claim are THC-free and lab-tested, but Louisiana State Police lab results confirmed the presence of THC.
“If we can’t ensure a product available to the public contains what it purports to contain or not contain, it presents a public safety risk,” Legier said. “What we’re finding is that rather than trusting a government agency that has the public’s safety in mind when making these decisions, that a lot of people are listening to sales people.”
Legier acknowledged enforcement on the issue is uneven. ATC only has oversight over businesses selling alcohol and tobacco products, which includes vapes and vapor products, but cannot regulate shops that specialize in CBD oils or other products.
He said the agency sympathizes with small businesses, but that the risks outweigh the benefits in the ATC’s eyes.
At Lit Smoke Shop in Lafayette, Ash, an employee who declined to give his last name, said the store pulled all CBD products from its shelves at both locations when the ATC advisories went out.
“We’re just doing whatever we have to do to follow the laws. It’s not worth losing our license,” he said.
People call or come by the store inquiring about CBD products every day, he said, and it’s a shame to turn away customers in pain who are looking for alternative health remedies to narcotics or other pharmaceuticals.
Legier said when enforcement falls beyond the boundaries of the ATC or the Louisiana Board of Pharmacy, responsibility for investigating a business’ CBD products falls to local law enforcement. Whether they choose to investigate or not is left to their discretion, he said.
The uneven enforcement of the law contributes to confusion surrounding the legality of the product, Acadiana attorney Dylan Heard said. Heard is an advocate for cannabis legalization and is involved in the National Organization for the Reform of Marijuana Laws.
“People think it’s okay because others are doing it but you’re all subject to the whim of law enforcement,” Heard said.
It's unclear how many businesses in the area are selling CBD products.
Though CBD is illegal in Louisiana because it’s a cannabis-derived compound, the greatest enforcement actions seem to be against businesses whose products authorities suspect contain THC, Heard said.
Within a mile of Cajun Cannabis is HippieTown U.S.A., whose Johnston Street location features a bold sign advertising “CBD Sold Here.” Products from CBD brand Green Roads were stocked inside a glass case in the business, and an employee said the business hasn’t had issues from law enforcement to date.
When approached by The Acadiana Advocate, HippieTown U.S.A’s owner said she had no comment.
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Lafayette Sheriff Mark Garber said his deputies investigated DeYoung’s Cajun Cannabis after multiple complaints from the public. He said undercover agents purchased products and tested them, revealing they contained THC. DeYoung maintains his products were third-party tested and THC free.
DeYoung also maintains he operated a legal business. Part of his argument was that he had the support of local government and was granted a Certificate of Occupancy from Lafayette Consolidated Government to operate his business in the city-parish.
Lafayette Consolidated Government Development and Planning Director Danielle Breaux said in an email the city-parish’s permitting process “does not regulate what is being sold, only that the construction complies with the building and fire codes as well as any applicable UDC ordinances.”
“A [Certificate of Occupancy] is required by UDC ordinance for all commercial businesses to operate, but in no way grants permission to sell illegal products or commit illegal acts,” Breaux said.
Heard said Breaux’s statements are a lesson to business owners that administrative approval doesn’t necessarily signal your business is operating within the law.
“Just because the state, parish and city are allowing you to operate it doesn’t mean you’re doing so legally,” Heard said.
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CBD enthusiasts who are hoping the proposed legislation working its way through the state legislature will clear the way for CBD should temper their expectations, Heard said.
While the bills open opportunities for industrial hemp and some CBD in the state, they don’t create a clear path forward for over the counter sales of CBD, he said.
The bills — House Bill 491 and House Bill 138 — legalize the growth of industrial hemp and amend the state’s criminal code to exempt industrial hemp and FDA-approved CBD products from the state’s list of controlled dangerous substances, respectively.
Epidiolex is currently the only FDA-approved CBD product available for sale, and it can’t be purchased over the counter, Heard said. The proposed changes wouldn’t allow retailers to legally sell CBD products over the counter. Technically, they would still be illegal under state law and CBD retailers would remain in their current predicament, he said.
“When and if it passes it’s not doing any favors for these CBD stores. It’s still a violation of state law,” Heard said.