Recreational and medical marijuana is legal in some states, but the TSA has always been clear that flying with any form of marijuana was illegal. But that changed over the weekend, when the TSA quietly updated its "What can I bring?" page on medical marijuana to note that passengers can now fly with some forms of CBD oil and one hemp-derived medication approved by the FDA.
Yesterday on Twitter, the @AskTSA account advised a traveler that "Products that contain hemp-derived CBD oil or are FDA-approved are generally legal & can fly."
The TSA said the change was prompted by the only Food and Drug Administration-approved drug that contains CBD oil, Epidiolex, which is used to treat seizures in children with epilepsy.
The notation on medical marijuana now reads:
"Possession of marijuana and certain cannabis infused products, including some Cannabidiol (CBD) oil, remain illegal under federal law. TSA officers are required to report any suspected violations of law, including possession of marijuana and certain cannabis infused products.
Products/medications that contain hemp-derived CBD or are approved by the FDA are legal as long as it is produced within the regulations defined by the law under the Agriculture Improvement Act 2018.
TSA’s screening procedures are focused on security and are designed to detect potential threats to aviation and passengers. Accordingly, TSA security officers do not search for marijuana or other illegal drugs, but if any illegal substance is discovered during security screening, TSA will refer the matter to a law enforcement officer."
In the past, the TSA did not differentiate between marijuana and some hemp-derived products. Hemp derivatives contain little to no tetrahydrocannabinol, or THC, the psychoactive chemical in marijuana that produces a high.
The new rule does not change the TSA's ban on other forms of marijuana, including cannabis-infused products and CBD oils that contain THC. But it's unclear how TSA officers would know whether a substance contained THC, since the TSA does not do on-site testing at airport security checkpoints. If there is a doubt, a TSA spokesperson said the matter would be referred to local law enforcement.
"This is an interesting development, but demonstrates several things," says David Bannard, an attorney with Kaplan Kirsch & Rockwell LLP in Boston, who consults with airports on marijuana and other regulatory issues."First, this confirms the split between the federal regulatory regime and those states that have legalized marijuana for certain uses, especially for recreational use. Second, it also shows that Congress is beginning to follow the general public and may presage the devolution of regulation of marijuana to the states. Lastly, it does not mean that it is legal to fly with marijuana products in one’s possession — that remains impermissible under federal law."
As the TSA's "What can I bring?" page notes, "The final decision rests with the TSA officer on whether an item is allowed through the checkpoint."
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