Excerpted from JD Supra, LLC by David Standa

Over the Memorial Day weekend, the TSA updated its policy regarding cannabis. Specifically, the TSA updated the “Medical Marijuana” category of its “What Can I Bring?” section of its website from “No” to “Yes (Special Instructions)” for both carry-on and checked baggage. However, the “Special Instructions,” which are set out below, are no instructions at all. Instead, they are just a recital of the current state of the law.

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.

The “Special Instructions” do not provide travelers with any indication about what products the TSA will refer to law enforcement and what products it will not, and they do not provide any clarity for how the TSA will reach those decisions. It seems safe to assume that the TSA will continue to treat medical marijuana that contains THC as an “illegal drug,” and therefore refer passengers carrying such products over to law enforcement. So, the TSA’s answer on that appears to still be “No.” And its approach to CBD products is now just muddled. Absent the TSA maintaining a database of the production processes for all CBD products (something that is essentially impossible), how are TSA agents going to know whether a CBD product was produced within the regulations of the Agriculture Improvement Act of 2018?

This is a good example of admirable intentions leading to bad policy. The TSA is clearly trying to become more lenient towards CBD, but its confusing policy is likely only going to lead to more problems. The change from “No” to “Yes” is going to lead to more travelers bringing cannabis products on flights, but the lack of clarity is going to lead to more incidents at TSA checkpoints similar to the incident that occurred at Disneyworld not too long ago.