Cannabidiol (CBD) is a naturally occurring chemical compound in the cannabis sativa plant, from which both marijuana and hemp are derived. Tetrahydrocannabinol (THC), another compound of the cannabis plant, produces psychoactive effects and is only contained in marijuana. Thus, while both hemp and marijuana contain CBD, which is non-intoxicating, marijuana also contains THC. Both Michigan and federal law classify CBD oil as “hemp” rather than “marijuana” if the oil contains no more than 0.3% THC.
CBD oil can be used to treat a wide variety of health problems, including chronic pain, anxiety, and seizures. Although most commonly used as an oil extract or a food additive, CBD comes in other forms, including topical, ingestible, and sublingual (under the tongue). CBD can be purchased over-the-counter from major retailers (e.g., Kroger, Amazon, etc.), but is not FDA-approved. To date, the FDA has approved only one CBD-based medication, Epidiolex, which is prescribed to treat specific seizure disorders or severe forms of epilepsy.
Under Michigan law, marijuana, whether prescribed or recreational (including CBD oil with more than 0.3% THC), cannot be possessed or used on school property or in a school bus. Most student codes of conduct also prohibit the use of marijuana or other controlled substances on school grounds.
Revised School Code Section 1179(3) provides that a student may possess or use an FDA-approved over-the-counter topical substance at school or school activity (with parent approval and notice provided to the principal). While CBD products may meet the definition of a “topical substance” under the Revised School Code (“any topical product with a therapeutic effect”), CBD oil (other than Epidiolex) is not FDA-approved. School officials are therefore not required to administer, or permit students to self-administer, CBD oil or products containing CBD, even if the product contains no more than 0.3% THC.
While students may use CBD oil with no more than 0.3% THC at school, school officials should ensure that such use is consistent with school policy. For example, the CBD product should be brought to school in its original container that identifies THC content. School officials should check labels of CBD products to ensure they meet the THC threshold and limit the student’s use to that prescribed by a physician. Even if a school permits CBD oil, CBD-infused food and beverages can present a larger problem for school officials because definitively determining the amount of THC in these products is difficult.
Even if a school prohibits the use of CBD oil with no more than 0.3% THC, school officials should carefully assess any requests for a student with a disability to receive CBD-based medication. A recent federal court decision addressed such a request when a school required the parents of a student with a seizure disorder to remove the student from school grounds when the student’s CBD medication needed to be administered (three times a day). The school rejected the parents’ request that the school provide the student with home instruction and opportunities for socialization to ensure they could provide the student’s medication without regularly removing her from school. The court found that the school denied the student FAPE by not allowing home instruction, noting that “there is no legal basis under the IDEA for a district to require parent attendance as a way to provide FAPE in the LRE. This district could have provided home instruction to allow the student to receive prompt treatment for seizures without impermissibly compelling her parents to accompany her to school.” Albuquerque Pub Schs v Sledge, 74 IDELR 290 (D NM, August 8, 2019).
While this area of law remains unsettled, we will continue to keep our clients updated on legal developments.