After Eddie Smith opened an alternative medicine shop in downtown Mission in October, he called the Kansas attorney general with a seemingly simple question: Am I allowed to sell hemp oil?
The answer was not so simple.
“The only thing that they said is, ‘We can’t tell you,’ ” Smith said. “I called three different times, and I got the same answer.”
Smith is part of a small but growing number of people in the metro area selling cannabidiol, or CBD, a product that exists in the gray areas between unregulated herbal supplement, illegal controlled substance and licensed, regulated pharmaceutical medication.
It’s derived from the cannabis plant, which most people know as marijuana. But CBD sellers call their version “hemp” because it comes from plants with little to no THC, the ingredient in marijuana that produces the “high” that recreational users are after.
CBD is mixed into many forms — powders, pills, oils and lotions. It can’t get you high, but some users say ingesting it or rubbing it on the skin helps with pain and other medical conditions. Most of those claims haven’t been vetted by the U.S. Food and Drug Administration, but GW Pharmaceuticals is in late-stage FDA clinical trials for a CBD-based drug for some epilepsy conditions.
The federal government seems to disagree with itself over whether CBD is legal. A farm bill passed in 2014 allows for some research on “industrial hemp” of 0.3 percent THC or less. CBD sellers say that’s the legislation they’re working under.
But the U.S. Drug Enforcement Administration classifies all parts of the cannabis plant as a Schedule I controlled substance — subject to the agency’s strictest regulation.
That classification is being challenged in a federal appeals court in San Francisco, and so far the feds have shown little interest in cracking down on CBD sellers.
Despite the legal risks, some in the Kansas City metro area are open and upfront about their products.
Smith said he notified the Mission police chief before he started selling CBD. In downtown Kansas City, Brendon Hodgson named his shop The CBD Store and included in the storefront sign the green cross that’s often associated with medical marijuana dispensaries in states where those sort of stores are legal.
They’re not legal in Kansas or Missouri.
Missouri did legalize low-THC hemp oil for treating children’s seizures in 2014.
But that’s exactly what has gotten CBD shops on that side of the state line in trouble in the past.
Shahid Hassan’s shop on Main Street in Kansas City is a small space of glittering glass pipes and colorful vaping products, but, as of last summer, no more CBD.
Hassan was one of dozens of retailers who got cease-and-desist letters from then-Missouri Attorney General Chris Koster last year, telling him to stop selling it. By creating a formal licensing process to allow stores to develop and sell low-THC oil, Koster said the legislature had also created a prohibition on unlicensed sellers.
Hassan said he called his suppliers, and they said everything was fine as long as what he was selling was less than 5 percent CBD. Then Koster’s office sued his shop and three others.
Hassan said Koster’s office agreed to drop the suit after he agreed to stop selling CBD.
“A lot of people are still coming in (for it), and I just say ‘We don’t sell’ ” it, Hassan said.
Other businesses were less compliant.
CBD American Shaman is a Kansas City-based supplier that ships CBD products nationwide.
Its CEO, Vince Sanders, said he’s confident he and those who sell them are on the right side of the law.
“Believe me, I have vetted this,” Sanders said. “Our first year we spent more on legal fees than anything.”
Sanders’ attorney, Sean Pickett, sent a letter to Koster’s office last August on behalf of Hodgson’s store, telling the state attorney general he was mistaken in his interpretation of Missouri law.
Pickett said he never heard back.
Loree Anne Paradise, a spokeswoman for Koster’s successor, Josh Hawley, would continue to “enforce the laws enacted by the legislature.”
“But we cannot comment on pending or potential future litigation,” Paradise said.
Hassan knows that nearby shops like Hodgson’s are still selling CBD. Meanwhile, he’s cut back from seven employees to four because of the loss of customers since he stopped.
He said he’s placed about a half-dozen calls to Hawley’s office to ask if there’s been some policy change.
“They have only one word: It’s illegal,” Hassan said.
That’s more direction than Kansas Attorney General Derek Schmidt was able to provide.
“Because our office provides legal representation to the state and its agencies, we cannot provide counsel, legal advice or research to private citizens, businesses or groups,” said Jennifer Montgomery, a public information officer in Schmidt’s office.
Unlike Missouri, Kansas has no licensing framework for CBD oil. Rep. John Wilson, a Democrat from Lawrence, has introduced multiple bills to create a formal regulatory process for producing and selling low-THC oil to treat seizures. None has passed, though the Legislature is mulling a bill this year that could allow farmers to grow low-THC hemp.
After consulting with experts at the National Organization for the Reform of Marijuana Laws, a medical marijuana advocacy group, Wilson said he believes Kansans who buy CBD products now being sold in shops and online could find themselves afoul of Kansas law and federal law.
“There are no safeguards or legal protections for people who are buying from those shops,” Wilson said.
He also said buyers may not be getting what they think they’re getting.
Over the last two years, random FDA testing has turned up dozens of products advertised as CBD that actually didn’t contain it.
None of that dissuaded Diane Sizer of Overland Park from stopping into Smith’s shop in Mission this week. After she finished shopping, Sizer returned to the minivan where her husband, Scott, was waiting.
Scott Sizer was diagnosed with multiple sclerosis in 1990. He uses a wheelchair and has regular muscle spasms.
“I’ve been on multiple MS drugs, and none of them are cures,” he said, “and I haven’t found any that help with my pain.”
“I’m looking for healing for him, so I’ll go pretty much anywhere,” his wife said.
Both said they’d be disappointed if Smith had to stop selling CBD.
Smith said he thinks he’s come to an understanding with local law enforcement. But he’s not sure where he stands with the state, and he has some concerns about the strong anti-marijuana stance of new U.S. Attorney General Jeff Sessions.
“I don’t want to have anything illegal, I don’t want to do anything illegal,” Smith said. “If they say tomorrow it’s illegal, hey, it’s out of here.”