The District Attorney’s office announced in a statement Tuesday that all criminal charges filed in connection with allegations of selling products containing a substance closely related to the active ingredient in marijuana called ‘cannabidiol,’ commonly known a CBD, against store clerks and markets will be dropped and the records expunged .
In addition to the criminal charges, all public nuisance actions taken against markets will be dismissed and all property seized under the court’s order will be returned.
District Attorney General Jennings Jones said that the Tennessee Bureau of Investigations chemists informed his office of the limitations of their ability to determine the origin and amount of controlled substances in the samples provided, which effectively removed the foundation of his case:
Chemists from TBI have now informed my office they cannot determine whether the cannabidiol detected on these products came from a hemp plant or marijuana plant. I was also informed that the TBI lab cannot determine the level of tetrahydrocannabinol (THC) in any of the products they tested.
It now appears that the TBI lab reports, if they had been accurately written, should have stated that their findings were ‘inconclusive’ as to whether cannabidiol is a controlled substance. The cannabidiol substance detected by the TBI lab in the edible candies is identical in composition to the same extract from hemp products, which are distinct under the law from marijuana products.
Since the TBI lab cannot conclusively establish in court that the cannabidiol they detected was derived from a marijuana plant, the State cannot prove the substance is actually a Schedule VI controlled substance. The TBI lab reports constituted the foundation of all indictments and nuisance actions in this case.
In this matter, it is inaccurate for the local stakeholders in these cases to assert they made decisions in this case unaware of the limits of our forensic work.
The role of the Tennessee Bureau of Investigation in laboratory analysis is to objectively analyze submitted evidence. We make no determination of the legality of situations involving the evidence we examine, and, in fact, our Forensic Scientists are rarely aware of the circumstances involving the evidence submitted for analysis.
Our laboratory analysis can only determine relevant compounds, not the particular origin of those substances. So, in this matter, we are not able to determine whether the CBD in these cases originated from industrial hemp, illicit marijuana, or synthetic production. In fact, such a determination is beyond the capability of contemporary drug identification. Still, the identified CBD, as a derivative of marijuana, may be considered a Schedule VI substance under the Tennessee Code, which is why our agency reported it that way to the local law enforcement agency and District Attorney General.
In the midst of this process, we clearly explained – in detail – the limitations of our analysis to all stakeholders. We did so to ensure they fully knew that, though we could identify CBD, we were not able to identify its origin.
We also explained to them the nuance of the included schedule on our lab reports, which are provided as a courtesy. In this instance, we listed the schedule out of an abundance of caution because the sample could have met the standard for schedule as spelled out in the law. Local agencies and prosecutors – including those in Rutherford County – are well aware of that nuance.
During the recent news conference on these cases, General Jones acknowledged himself that a substance being identified as a particular schedule does not make it inherently illegal. The circumstances of the possession or transfer – as determined by the local law enforcement agency and interpreted by the District Attorney General – make something “illegal.”
Again, to be clear: TBI lab reports objectively determine the compound present, but in no way are statements of compound origin, circumstances of possession, or guilt or innocence. Though we identified the substance and the relevant schedule, we made no determination about the legality of the substance or the circumstance in Rutherford County. That was a decision solely made — as in all cases — by the local agency and District Attorney General.