The controversy over the legality of cannabidiol, also known as CBDs, and the sale of those products at a Herman convenience store has made its way to the Nebraska Supreme Court.
Washington County Attorney Scott Vander Schaaf and defense attorney Mallory Hughes made their arguments before the court Sept. 4.
“What we're asking for is just some sort of designation. I think it's just as important for the public to understand. I don't think it's just us. We hear from a lot of prosecutors that they are uncertain where the law is here,” Vander Schaaf said. “I don't think it's right to leave folks basically in the dark in regards as to what is a legal conduct and what is illegal conduct.”
Vander Schaaf filed the appeal in July 2019 after District Court Judge John E. Samson dismissed a case against two Washington County residents accused of illegally distributing cannabidiol at DJ's Vapes, 408 Main St., Herman, for a third time.
The charges — felony distribution and conspiracy — against Deborah S. Archer of Blair and Cory L. Russell of Herman were dismissed following a May 28, 2019, preliminary hearing.
In September 2017, Nebraska Attorney General Doug Peterson issued a memorandum that CBDs are a controlled substance and therefore illegal in the state.
The only exceptions, the memo said, were a study by the University of Nebraska Medical Center and any cannabidiol “contained in a drug product approved by the federal Food and Drug Administration.
Following that memo, the Washington County Attorney's Office charged Archer, owner of DJ's Vapes, and Russell, her employee, for selling CBD products in December 2017.
A county court judge ruled March 19, 2018, that there was sufficient evidence to bind the case over to district court. The case was dismissed June 15, 2018, following a plea in abatement.
The state refiled the case July 3, 2018. Following another preliminary hearing in district court, it was dismissed Oct. 29, 2018.
The state refiled the case a third time in district court on Nov. 8, 2018, before it was dismissed.
Vander Schaaf contends Samson didn't articulate or provide a legal reason to why the court dismissed all of the counts for both defendants.
Adding to the confusion, in May 2019, the Nebraska Hemp Farming Act (LB 657) was enacted. That law allows for the cultivation and processing of hemp and opens new commercial markets for farmers and businesses through the sale of hemp products. It also provides licensing and regulation for the crop. Hemp crops must contain less than 0.3 percent THC, the principal psychoactive chemical in cannabis.
Hughes, who represents Archer and Russell, argued she believes the law was clear before the enactment of LB 657 and that CBD oil was never a controlled substance under Nebraska law.
“First, the pharmacological effects or activity of CBD oil are different from those of THC,” she said. “Second, the source of the CBD oil that the appellees sold is unknown, which means it could have come from a totally legal source like flaxseed, and because the source is unknown, the record is void of any evidence that it was a synthetic equivalent to any illegal substance. And finally, there was no THC found during the lab technician's examination of the CBD oil sold by the appellees.”