As of 1 February 2021, low-dose cannabidiol (CBD oil) can be sold over the counter at pharmacies without a prescription. This follows a recent decision made by the Therapeutic Goods Administration (TGA) to down-grade low-dose CBD preparations from Schedule 4 (Prescription Medicine) to Schedule 3 (Pharmacist Only Medicine) under the Poisons Standard February 2021 (SUSMP No. 32).
No products have yet been approved for sale, but manufacturers are predictably keen to get to market. In order to qualify for TGA approval, a product must:
- contain less than 150 mg of cannabidiol;
- any cannabinoids, other than cannabidiol, must be only those naturally found in cannabis and comprise 2 per cent or less of the total cannabinoid content of the preparation, and of which tetrahydrocannabinol (THC) can only comprise 1 per cent of the total cannabinoid content; and
- be for adults aged 18 years and over.
Impact of the TGA decision on drug driving offences
Currently it is an offence to drive with the presence of certain drugs in a person’s system.
Section 111 of the Road Transport Act 2013 No 18 (NSW) (the RT Act) makes it an offence to drive (or attempt to drive) a vehicle with a prescribed illicit drug in your oral fluid, blood or urine. The RT Act defines THC as a “prescribed illicit drug”.
The penalties are serious; up to 6 months imprisonment and/or a $2,200 fine for a first offence.
At the moment, whether driving after consuming over-the-counter CBD oil depends upon whether the product contains THC. Unlike alcohol, there is currently no threshold for a legal blood-THC level. This means that a CBD oil product comprised of THC (albeit at the approved concentration) currently qualifies as a prescribed illicit drug and exposes the driver to liability under section 111.
A time for law reform?
Following the TGA’s decision, the Cannabis Legalisation Bill 2021 (the Bill) has been introduced which creates a framework to legalise the possession, consumption, cultivation, sale and purchase of cannabis for people over the age of 18. The Bill keeps certain restrictions on the consumption of cannabis, for example in vehicles or public places, however there is a defence of reasonable excuse to the offences it creates. Whether the consumption of over-the-counter CBD oil for medicinal purposes constitutes a reasonable excuse under the proposed Act will depend on the circumstances.
The Bill is currently adjourned for further debate before the Legislative Assembly. However importantly, the Bill would not change the current “zero-tolerance” approach to THC under the NSW “drug driving” driving laws.
Conclusion
The TGA’s decision on low-dose CBD oil is great news for sufferers of pain, anxiety and many other conditions. However those who are considering it need to be aware that its use could lead to possible penalties and licence sanctions under NSW “drug driving” laws.
For now at least, driving with any THC in your system, whether from an over-the counter CBD oil or otherwise, is illegal. Unless there is further legislative change, courts may see a spike in drug driving matters as these newly-legalised therapeutics reach the market. Any driver in that position should seek legal advice.
For assistance navigating the current status of drug driving laws, please contact Andrew Campbell or Brett Hearnden from our Criminal Law team.
– Authored by Andrew Campbell, partner, and Margaret Gotsopoulos, Graduate.
