CBD oil Katrina Evans

Katrina Evans with one of the flyers for the CBD oil she sold at her Pocatello store until police told her the substance was illegal in Idaho.

POCATELLO — The business owner at the center of a local cannabis oil controversy will not be charged by police even though her product tested positive for THC, according to Pocatello police Capt. James McCoy.

Katrina Evans started selling cannabis or CBD oil from her KATZ wedding and formal wear store on Yellowstone Avenue in Pocatello in early October believing the product contained no THC, the psychoactive substance in cannabis, or marijuana. Evans advertised the oil on her business’ Facebook page and with a sign outside of her store.

Pocatello police were notified in mid-October that Evans was selling the CBD oil and officers responded to her store to investigate.

Police officers took samples of Evans’ CBD oil — a product called UltraCell that is manufactured by the Texas-based Zilis LLC — and sent it to an Idaho State Police crime lab for testing. The results came back last week and revealed the CBD oil Evans was selling did contain illegal THC, Pocatello police said.

McCoy said the Idaho State Police crime lab has the ability to test only whether a substance has any THC in it and not for the amount of THC present. Evans said she later found out from Zilis that the CBD oil she had been selling had .0175 percent THC.

Under Idaho law, any substance that contains any amount of THC is illegal, even if the concentration is so small that it has no psychoactive effects on the user.

Following the investigation into the CBD oil Evans was selling, the Pocatello Police Department issued a news release on Tuesday warning local residents that although CBD oil distributors may claim a product contains no THC, many of the products do in fact contain very small amounts of THC, making them illegal in Idaho.

“The Police Department is reminding citizens that under Idaho law the presence of THC, in any amount, makes a product illegal to sell, possess, or consume,” the Pocatello police news release said. “Citizens should also be aware that it is the department’s policy to actively investigate reports of illegal activity and to pursue charges when they are warranted.”

McCoy said that in the future, police will investigate any reports of people or businesses possessing or distributing cannabis products believed to contain any amount of THC, adding that if it is determined a product has THC those individuals or businesses could be subject to criminal prosecution.

“I have received no official reports of other (Pocatello) businesses selling CBD products,” McCoy said. “If anyone is still selling it, I highly encourage them to return the product to their distributor and remove it from their shelves.”

McCoy said that it is not the mission of the Pocatello Police Department “to make criminals out of good citizens” by arresting them for having CBD oil.

“We are trying to give people ample opportunity to realize the error of their ways, to use better judgement and to dispose of these products,” McCoy said. “We do not have the time nor the manpower to go and actively pursue everybody, so we are not going shop to shop looking for people. The problem is that CBD oil is like the latest fad and they are putting it in everything.”

The prevalence of CBD oil in many forms, including oils, creams, capsules and balms, makes enforcement difficult, McCoy said.

Some say that federal and state laws have caused confusion among citizens regarding the legality of CBD oil, but McCoy says the laws are actually pretty clear.

Nicole Fitzgerald, an administrator in the Idaho Office of Drug Policy, agrees.

Fitzgerald said the only CBD oil that’s legal in Idaho is Epidiolex, a prescription-only pharmaceutical grade CBD oil that was approved by the U.S. Food and Drug Administration in June 2018 and was recently classified as a Schedule V drug by the U.S. Drug Enforcement Administration.

”This is the only legal form of CBD at the federal level and in the state of Idaho,” Fitzgerald said.

CBD is a substance found in both marijuana plants and in a near cousin of the marijuana plant commonly referred to as hemp.

Marijuana is illegal in all forms at the federal level, although it is legal in some states, while hemp plants are legal in some circumstances.

The CBD oil that’s sold in the U.S. is most often derived from hemp rather than marijuana.

“Hemp plants are only legal in the United States if they comply with the 2014 Farm Bill, which legalized the growing and cultivation of industrial hemp for research purposes in states where growth and cultivation is legal under state law,” Fitzgerald said in an email to the Journal last week. “However, growth and cultivation is limited to an institution of higher education or state department of agriculture. This carve out was intended for purposes of agricultural pilot programs or other academic research.”

Fitzgerald said that hemp has not been removed from the federal government’s controlled substances list. Furthermore, industrial hemp products may only be sold in states that allow such sale, said Fitzgerald, adding that industrial hemp plants and seeds may not be transported across state lines.

Other than the executive order Gov. C.L. “Butch” Otter issued in 2015 to establish Idaho’s Expanded Access Program that allowed patients with intractable epilepsy to access CBD oil from hemp for treatment, hemp production or the use of hemp products is not legal in Idaho because of the THC in hemp.

The 2014 Farm Bill set the threshold for THC amounts in hemp products at 0.3 percent in the states where it’s legal.

The fact that CBD oil from hemp has THC means that police in Idaho could charge anyone selling it in the Gem State with a marijuana offense.

But the filing of such criminal charges for CBD oil or anything else hemp related appears to be very rare in Idaho.

In contrast to what Fitzgerald said, Joel Bordeaux, the owner and founder of Global CBD LLC, a CBD oil manufacturer and distributor based in Sandpoint, told the Journal there are some misconceptions and misrepresentations about the 2014 Farm Bill.

Bordeaux said that Global CBD can make and produce CBD oil for commercial sale in Idaho from hemp plants so long as those plants originate from a state-approved pilot program or institution of higher learning.

Bordeaux says hemp and CBD oil products could be an extremely profitable agricultural product for Idaho. He says that 200,000 pounds of hemp could net farmers $10 million at $50 a pound.

Many advocates for CBD oil claim the substance can be a homeopathic treatment for seizures, anxiety and many other maladies, both for humans and pets.

Ken Merhib, the owner of the Enchantments store on North Main Street in Pocatello, was also selling CBD oil prior to the Pocatello Police Department issuing its warning.

“I’ve had people using CBD to help with cancer, anxiety, pain and inflammation,” Merhib said. “I’ve even heard that it helps get people off of opioids. We had a gentleman that would come in once every two weeks who had a dog that was having 40 seizures a day. By giving CBD oil biscuits to the dog he reduced the number of seizures to one or none a day.”

Merhib said he had about 20 to 30 steady customers purchasing CBD oil from his store before he pulled it from his shelves because of the Pocatello police warning.

Evans and Mehrib both agree that it would be advantageous for the Idaho Legislature or the federal government to clarify the laws regarding CBD.

“I could be prosecuted as a drug dealer but when I was selling it I didn’t feel like a drug dealer,” Mehrib said. “It would be good to clarify the laws.”

While a bill allowing Idahoans to possess CBD oil with no more than 0.3 percent of THC was approved by the state House of Representatives in February, it was referred back to the Health and Welfare Committee and was never voted on by the state Senate before the legislative session ended.

In 2015, Otter vetoed a bill that would have allowed parents of Idaho children with an intractable form of epilepsy to treat their kids with CBD oil but he later signed the executive order establishing an experimental program for its use.

Bannock County Prosecutor Steve Herzog said he too thinks the Idaho Legislature needs to do something to lessen the confusion surrounding the legality of CBD oil.

“The Legislature needs to figure this out,” Herzog said. “And they need to do it sooner rather than later.”

Despite waiting over a week before learning she would not be prosecuted for selling an illegal substance, Evans says that if she can find a version of CBD oil that is legal in Idaho she will sell it at her Pocatello store.

Evans said, “I really hope this experience will change a lot of things in Idaho. I am worried for anybody who sells it, but if we can find a product that is legal, a product with absolutely no THC, then yeah, we would probably sell it again.”