Legal Updates


SCHOOL DISTRICTS FACE QUESTIONS AS TO ADMINISTRATION OF CBD PRODUCTS

October 24, 2018

As the national debate continues over the legal use of medical marijuana and other cannabis products, several states, including Wisconsin, have enacted legislation legalizing Cannabidiol (“CBD”).  As a result, Wisconsin school districts are receiving requests from parents and guardians to have CBD products, such as CBD oil, administered to their child at school.

CBD Products

CBD products are not medical marijuana.  CBD is one of more than a hundred (100) cannabinoids derived from the cannabis plant.  Delta-9-tetrahydrocannabinol (“THC”) is the cannabinoid most closely associated with marijuana because of its psychoactive effects.  Unlike THC, CBD does not cause psychoactive effects.  However, CBD has been linked to several health benefits, most notably reducing the frequency and severity of seizures.

CBD products are produced from the cannabis plant, which can be grown as industrial hemp, with low levels of THC, or as marijuana, with higher levels of THC.  All CBD products contain some level of THC whether produced from industrial hemp or marijuana.  However, CBD products derived from industrial hemp contain only trace amounts of THC and do not cause any psychoactive effects.  CBD is sold in a variety of products including nasal sprays, oils, and capsules.

Legality of CBD Products

The Federal Agriculture Act of 2014 (“2014 Farm Bill”) authorized states to create pilot programs for growing industrial hemp.  By legalizing industrial hemp, the 2014 Farm Bill also preempted the Drug Enforcement Agency’s (“DEA”) designation of CBD as a Schedule I controlled substance, legalizing CBD derived from legally grown industrial hemp.  Hemp Industries Association v. U.S. DEA, 720 Fed. Appx. 886 (9th Cir. 2018).  Thus, CBD products derived from industrial hemp grown under a state pilot program are legal under federal law, although CBD products from other sources remain illegal.

In 2017, Wisconsin enacted two (2) pieces of legislation concerning CBD products.  In April, Wisconsin enacted 2017 Wisconsin Act 4 (“Act 4”), which excluded CBD in any form that does not produce psychoactive effects from the definition of THC.  In December, Wisconsin enacted 2017 Wisconsin Act 100 (“Act 100”), which created Wisconsin’s pilot program for growing industrial hemp and further revised the definition of THC to exclude THC contained in “fiber produced from the stalks, [or] oil or cake made from the seeds of a Cannabis plant.”  As a result of Acts 4 and 100, CBD products derived from industrial hemp grown under a state pilot program are legal under Wisconsin law.

Issues Associated with Administration of CBD Products

The administration of prescription and nonprescription drugs by school staff at school is governed by Wisconsin’s School Medication statute.  Wis. Stat. § 118.29.  The statute authorizes school staff to administer prescription and nonprescription medication to students at school subject to the conditions set forth in the statute and provides civil liability protections for staff who administer medication consistent with the statute. 

In June, the Federal Food and Drug Administration (“FDA”) approved the first prescription drug containing CBD for the treatment of rare seizure disorders in children.  However, other CBD products are widely available without a prescription.  Despite the FDA’s recent approval, CBD is not listed in the U.S. Pharmacopeia and National Formulary or in the Official Homeopathic Pharmacopeia of the United States meaning that CBD does not meet the definition of a “drug” under Wisconsin’s School Medication statute.  Wis. Stat. § 118.29(1)(b).  Thus, Wisconsin’s School Medication statute does not govern the administration of CBD products by school staff.  Rather, it is subject to local control.

School districts should review their Board policies to determine whether they address the administration of non-medications, such as dietary supplements or other substances for preventative health.  It is advisable for school district’s to address administration of non-medication substances before it receives a request to do so.  Board policies should also address other subjects regarding non-medications, such as self-administration and storage on school grounds.

If a parent requests that school staff administer a CBD product, the school district should evaluate the CBD product to ensure that it is produced legally from industrial hemp.  Some producers utilize third-party testing to verify that their CBD products are legally produced from industrial hemp and contain the advertised concentrations of CBD.  Manufacturers’ websites and third-party retailers can also be a valuable resource.  The Food and Drug Administration (“FDA”) has also issued warning letters for some brands of CBD products for misleading or false advertising.  The FDA warning letters are available online at https://www.fda.gov/NewsEvents/PublicHealthFocus/ucm484109.htm.

Additionally, school districts should consider whether the request for administration of CBD is based on a student’s disability-related needs.  School districts may be required to administer alternative medicines, such as supplements and substances for preventative health, as an accommodation under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act.  In re: Student with a Disability, 103 LRP 57802 (SEA NM 11/19/02).  The school district should convene the student’s Individualized Education Program (IEP) or Section 504 team if the parent of a student with a disability requests administration of a CBD product at school as an accommodation.

School districts can expect to receive more requests for administration of CBD products as they gain popularity.  School districts should be prepared to address several aspects associated with CBD products, such as self-administration by students, storage of CBD products at school, as well as, alternative forms of CBD product administration including, but not limited to, vaping or transdermal patches.

For question regarding this article or other special education topics, please contact the author, Attorney Chad P. Wade (email: cwade@strangpatteson.com; telephone: 844.833.0826) or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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