The FDA approves medicines, not products “for flight”, and so far the only CBD medicine it has approved is Epidiolex (FDA). The TSA’s current guidance says that its officers do not search for illegal drugs, but will refer any illegal substance found during screening to a law enforcement officer.
Although recreational and medical marijuana have been legalised in some states, the TSA had always maintained a firm resolve on the illegality of flying with marijuana. However, things changed a few days back when the TSA made a discreet update on their page informing passengers who would care to be up-to-date with information, that they can now fly with CBD oil products (not all types) and a hemp oriented medication which has been approved by the FDA.
On Twitter, the verified account of the TSA - @AskTSA, replied to a prospective passenger about which CBD oil products and FDA-approved medications could be carried.
According to the TSA, the change was necessitated by the FDA’s approval of drugs that contain CBD oil; especially the Epidiolex which is used to treat epileptic children of their seizures.
As it stands now, the information available on medical marijuana now provides that the products that are derived from CBD and are approved by the FDA are legal as long as they’re produced with strict adherence to the provisions of the Agriculture Improvement Act 2018, while the possession of marijuana and a number of other cannabis oriented products (inclusive of CBD oil), including CBD products and marijuana, is yet to be legalised by federal law, and the TSA officers are mandated by law to report any violations of the law if suspected.
In the light of the law, the procedures for screening carried out by the TSA, are focused on fishing out potential threats among CBD products that are carried by passengers. Although they do not hold the power of arrest, the TSA is expected to report the situation to a law enforcement officer.
Before the approval by the FDA, the TSA did not pay attention to differentiating between marijuana and other hemp-related products; most hemp-oriented drugs have little to no THC content which is the psychoactive component in marijuana that causes the feeling of being high, and which is why it is deemed illegal to prevent abuse.
The revised laws guiding the TSA do not restrain them from banning certain forms of marijuana and CBD products with unregulated THC level. However, it is uncertain how the TSA officers would recognise a product with THC, as they do not engage in on-site testing at the security checkpoints of airports.
A TSA official in responding to the grey areas said that suspicions would be directed to local law enforcement for proper handling.
According to David Bannard from Kaplan Kirsch & Rockwell LLP, Boston, he believed that the recent developments reaffirm the division between the federal government and states that have legalised marijuana for specific uses (medical and recreational purposes). He also went further to say that the developments showed that Congress is gradually yielding to public opinion and may divert marijuana regulations from the federal government to the states. But all the developments so far do not mean that the federal law is of non-effect – flying with CBD products is still illegal under the federal law.
So far, the TSA officers hold the ultimate right to determine what would be allowed at airport security checkpoints.
