Clarence Laub stands on the edge of his hemp field outside Elgin, talking to attendees of a state hosted crop tour about the plant he’s been growing the past three years.
Some of the leafy stems match his more than 6-foot frame in height.
Since the 2014 Farm Bill made the plant’s production legal on a state-run, scientific study basis, North Dakota's hemp industry has been growing much like Laub’s plants. But legal questions have kept producers from making one of the crop's most desirable derivatives and has wreaked havoc on retailers wishing to sell what they believe to be a legitimate product - CBD.
Now a local nutrition store owner is seeking more clarity from the state Attorney General’s office on the subject.
After Bismarck police informed Lonna Brooks in 2017 that selling CBD in her store, Terry’s Health Products, was illegal and she turned it over to them. Most recently, police approached H&I Nutrition in July after receiving a tip the store had the product. Sgt. Mike Bolme said the manager told him they wouldn’t sell it.
But driving around the state Brooks has seen it on shelves in other stores. She said she asked the store owners if they’ve faced repercussions from law enforcement.
The answer she hears: “None whatsoever.”
Cannabidiol, or CBD, is a non-psychoactive substance derived from cannabis plants. Hemp and its cousin, marijuana, are both varieties of cannabis, though they're different in a number of ways. Hemp contains little to no THC — the intoxicating substance in marijuana. It also contains more CBD.
Yet the DEA still classifies CBD as a Schedule I controlled substance.
According to a spokesman from the agency, the problem with CBD isn't the substance itself. Rather, it's that most of the available product comes from "clandestine manufacturers," who are pretending their product comes from the legal, mature stalks of hemp plants, but are in fact making their product from plants the agency considers to be marijuana, not hemp. The difference between hemp and marijuana is the content of the psychoactive drug THC.
"The problem is, how do you know when you get the final product, where it originated from?" Melvin Patterson, spokesman for the DEA, told the Tribune in 2017.
Brooks said there are companies able to produce CBD oil from the stalks and stems of the hemp plant.
But arguing her point she has been getting nowhere locally. So she is taking what she thinks is her only recourse for the moment - asking for the attorney general’s opinion.
“Either I’m going to make a lot of people mad or a lot of people happy,” she said.
To date, Attorney General Wayne Stenehjem has followed a letter from the DEA to the attorney general's office saying the substance is illegal.
But Brooks says he doesn’t have the latest information.
A national group, Hemp Industries Association, sued the DEA over its scheduling of CBD. The two have since mediated the case, resulting in the DEA issuing an internal directive in May that re-emphasized the legality of hemp products, according to HIA.
“But no one wants to recognize that statement,” Brooks said.
Brooks is hopeful, before issuing his opinion, Stenehjem will take into account the DEA’s May directive and dig into what other states are doing, like Wisconsin, where the state Department of Justice issued a statement in May saying CBD produced and sold under the state’s hemp pilot program is considered legal.
“If it doesn’t turn out the way we want and he says no at least it will be fair across the board,” Brooks said, referring to retailers in other cities being allowed to sell the product not being allowed in Bismarck.
Though North Dakota Attorney General Wayne Stenehjem's office initiated enforcement of the DEA directive on CBD, he said in a 2017 interview that it is not a priority for his office.
“Though it's against federal law, we're really concentrated on heroin, meth and fentanyl," he said.
Citing research that CBD has helped some kids with seizures, Stenehjem said he thought Congress should reconsider its legal status.
"Congress does need to take a look at it," he said in 2017. "A, there may be some medical benefits. And B, if it's not psychoactive like marijuana, and, if it's not harmful, why do they want to say it's Schedule I?"
As part of the proposed 2018 Farm Bill, the Senate has called for opening up industrial hemp production completely - no longer requiring it to be run by state pilot programs.
“It would absolutely clear it up,” if the Farm Bill provision were to pass, Brooks said.
She’s been working with HIA on a national level and she’s hopeful, if things don’t work out, she and others wishing to sell the product can approach lawmakers during the legislative session about making changes on the state level.
“People who want to take it do not want CBD that has THC in it,” Brooks said. “My customer base doesn’t want that.”
Bolme said Bismarck police have responded to three stores selling CBD oil after receiving tips from the attorney general’s office and the public. Bismarck police treat CBD oil differently than other controlled substances, though, by not pursuing criminal charges against the owners of the stores. Most of the time they just didn’t know it was illegal, he said.
“You have to show intent and ... there was no intent there to break the law,” he said.
Bolme said he understands the frustration Brooks has with not being able to sell CBD oil at her store in Bismarck. Even though it’s illegal, Bolme’s aware of stores in other cities in the state where it is on the shelves.
“It is unevenly enforced throughout the state,” he said.
Bolme said he’s not sure if the attorney general’s opinion is “going to make a difference or not,” and Bismarck police will continue to go after stores that sell CBD oil.
“I feel like we’ve acted in the past, and now we have to act consistently. We’ve kind of established a precedent here in Bismarck, so I guess we’ll wait and see for guidance,” he said.