What to Do if You’re Caught With CBD Flower

Man wearing a windbreaker hoodie smoking a joint during sunset.

CBD flower, though legal, closely mimics its illegal counterpart, marijuana. So, what do you do to prove you’re not breaking laws when caught with CBD flower?

When caught with CBD flower, CBD users should be able to quickly provide proof that the product falls in line with state and federal legislation. Certificates of analysis, product packaging, and other resources can show CBD was legally purchased and help users avoid legal consequences.

Of course, using these tools to defend oneself means that CBD users must be proactively aware of such a reality. If you end up in a situation where you’re caught with CBD flower, you should try every possible option you have to verify your product is not marijuana.

Can you smoke CBD flower in public?

In most states, it’s not explicitly illegal to smoke CBD flower in public spaces. 

However, smoking hemp in public often puts users at risk for fines, tickets, or other legal trouble, primarily because it’s impossible to differentiate between marijuana (federally illegal in the U.S.) and CBD hemp flower.

This reality is particularly true if you live in a state with strict marijuana laws in place, but it’s important to keep in mind anywhere you go. Smoking in public places with large amounts of people (parks, amusement parks, fairs, etc.) isn’t the best idea overall; so long as officers have a reason to suspect you’re smoking marijuana, they can take action against you.

Even roadside testing kits, used by many field and police officers, can’t tell the difference between hemp and marijuana. Both marijuana and hemp share the same scent, texture, and appearance, so users must rely on other methods to prove that their hemp is indeed legally purchased.

Without the means to successfully demonstrate that your CBD hemp flower is legal, you may be arrested or fined until more formal and thorough testing can be done. 

Of course, smoking in public in general (whether it be tobacco or hemp) can be tricky. Many spaces ask visitors to refrain from smoking altogether, and hemp smoke is no exception to these sorts of regulations.

If you are looking to smoke hemp flower in a public space or outdoors, be sure to take the steps necessary to protect yourself and to consider the health of others. Refrain from smoking in public buildings or close to large groups of people and children, ensure you have adequate proof that your product is legal, and follow any other relevant guidelines in the area.

List of States Where CBD Flower is Illegal

As of 2021, industrial CBD hemp flower is legal in all 50 U.S. states. Thanks to 2018’s Farm Bill, which legalized the production and sale of hemp flower (with 0.3% THC or less by weight) federally, it’s possible to obtain at least some form of CBD in every U.S. state. However, local regulations limit certain aspects like how much THC content the CBD has and whether or not it is hemp-derived or cannabis-derived.

In the past, despite being federal legally, CBD hemp flower could not be produced in certain states. Even now, some states have more strict laws regarding the presence of THC in hemp than those outlined by the federal government.

Though CBD itself may not be technically illegal in any U.S. state, where it comes from does matter. Some lenient states allow residents to use either hemp-derived or marijuana-derived CBD. Still, most allow only hemp-derived CBD to be legally purchased and used (unless marijuana-derived CBD is attained through a state’s medical marijuana program).

So long as hemp flower and other hemp-derived CBD products meet requirements outlined by the Food and Drug Administration (FDA), users shouldn’t encounter any issues when purchasing, transporting or using them.

If you use CBD products that come from marijuana rather than hemp or contain higher than 0.3% THC, it’s important to have documentation to prove you’ve obtained it legally.

If you purchase a product containing CBD from a medical marijuana dispensary, for instance, it’s a good idea to keep the packaging your product came in on hand in case you need it. As more and more states develop medical marijuana programs, it’s becoming easier to access these types of products; in addition, some states have different rules regarding how much THC can be found in CBD products explicitly used for medical purposes.

Because hemp-derived CBD is federally legal, it’s also possible to safely purchase CBD hemp flower or other CBD products online. The internet is an excellent tool for accessing all sorts of product types – including oils, topicals, edibles, and more – for any purpose you may have.

If you’re purchasing products online, it never hurts to check information regarding any product type restrictions or rules that may exist in your state. Utah, for instance, does not license food or beverages containing CBD, meaning some types of CBD edibles may be problematic.

Couple smoking a joint on the beach.

What to Do if You're Caught With CBD Flower

If you’re caught with CBD flower in public, the most important thing to do is stay calm. Though it’s natural to be nervous when facing potential legal repercussions, so long as you’ve taken steps to prove your product’s legitimacy, you can successfully avoid unnecessary consequences.

CBD flower looks and smells identical to marijuana, as discussed, which means that carrying or using it in public can raise some eyebrows. Therefore, should you be approached in public by law enforcement, it’s vital that you’re able to prove that what you have is indeed CBD hemp flower.

Here are a few tips to keep in mind:

  • Keep your product inside of its original packaging when possible. If you’re able to keep your product stored inside the packaging it came in (complete with product information, certificate of analysis, etc.), it’s straightforward to show that your product is hemp rather than marijuana.
  • Keep your product’s packaging with you instead of trashing it. If you decide to store your product elsewhere, don’t pitch the package it came in. Holding onto product information and the original packaging is another simple way to prove you’re not harboring any illegal substances.
  • Don’t underestimate the importance of a certificate of analysis. A certificate of analysis, which you can find on CBD products of all sorts, breaks down the makeup of your product, including the amount of CBD and THC. Presenting a certificate of analysis, whether on the packaging or acquired otherwise, quickly demonstrates to law enforcement that you’ve complied with legal restrictions.
  • If you lack this information in person, make use of other resources. Losing packaging happens, and sometimes products do a poor job displaying important information. Visiting the website of the company you’ve purchased from can be another way to access certificates of analysis or other important information about your product, especially if you’d like to be prepared to back yourself up.
  • If you used any documentation to purchase your product (such as a medical marijuana card), keep it on hand. Though it’s not necessary to have any documentation for hemp-derived CBD products, some states allow individuals to purchase CBD through medical marijuana programs. If that’s the case, keeping your card with you can also help you avoid trouble.
  • Avoid using certain types of products in public spaces. If you must use your product in public, seek out a private, safe area. In many places, it’s challenging to smoke anything in public, let alone something like CBD hemp flower. For those looking to avoid any altercations whatsoever, it can be beneficial to refrain from using more “obvious” products like flower in public. Even if you can prove your flower is legal, you still may have to deal with the unpleasantness of defending yourself to others or law enforcement. If you choose to use CBD in public spaces, opting for a more subtle option like CBD vape cartridges can help save you a lot of time and trouble.
  • If worst comes to worst, comply with law enforcement as necessary. Maybe you’ve been caught with CBD flower, and you have no way to prove that it’s hemp rather than marijuana. Though this case scenario is unlikely, do your best to cooperate with law enforcement if it comes down to it. Attempting to argue, leave the premises, or otherwise resist can create more problems than solutions. Don’t forget your rights, and if arrest becomes a concern, speaking with a lawyer as soon as possible is the way to go. Stay calm- if worse comes to worst, a lab test will reveal that you were only smoking CBD, not weed.

Getting caught with CBD flower can undoubtedly be an alarming and scary experience, but there are many things users can do to help avoid confusion or even arrest. Making an effort to keep resources that can help prove you’re carrying only CBD flower can significantly reduce the risk of severe consequences.

And remember, CBD doesn’t show up on a drug test, only marijuana does. So a simple drug test will clear your name.

Final Thoughts

Though CBD hemp flower is now legal nationwide, law enforcement practices have yet to completely catch up. 

Without adequate ways to quickly and easily test products for THC levels, it’s nearly impossible for law enforcement officers to differentiate between illegal and legal cannabis products. If THC is detected in a product, law enforcement technically has the right to take action unless the user can otherwise demonstrate they’re not breaking the law.

Unfortunately, this reality means that a lot of responsibility falls into the hands of CBD users themselves. Keeping packaging and documentation that show where your product is from, what it is, and what it contains can help you steer clear of arrest or other serious consequences, but this strategy requires commitment and consistency.

Purchasing CBD products from reputable sellers who make an effort to clearly label products and provide comprehensive information about them can make things a lot easier. For brand and product recommendations that you can safely transport without fear, be sure to check out our directory here

No matter what, being an informed user and consumer is a huge first step toward dodging unsafe products and situations.

Josh Murdoch

Josh Murdoch

I was born with Cystic Fibrosis, and although it is incurable, CBD and THC have been allowing me to live my life as a healthy adult now for years. For that reason, I’ve dedicated my career to spreading the good news about cannabinoids. Currently, I work for a vertically integrated cannabis company called Unrivaled Brands that operates in California, Oregon, and Nevada. Previously, I worked on two cannabis farms in northern California, one of which was located in the famous Humboldt County. I’ve also managed a medical cannabis delivery service in Marin County, California. I created CBD Facilitator to share what I’ve learned, and to recommend the best products that I have found in this chaotic market.

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