If you’ve been following the news, you may have picked up that the DEA made a snceaky effort to try and criminalize cannabidiol (CBD), the powerful cannabinoid helping millions around the US and the world. This move led to huge anger amongst all of those people who are dependent on CBD to bring them easy relief without having to put up with any of the psychoactive side effects that marijuana brings. CBD oil derived from hemp is legal in all 50 states, and is used to tackle seizures, chronic pain, anxiety, insomnia and more.
The DEA’s move in December 2016 is potentially a very dangerous one as stopping companies from creating and selling CBD products isn’t going to stop the cannabinoid from being used. With the benefits blatantly clear, if CBD was made illegal then there’s no doubt that patients would simply look to the black market to find it – and by doing that they would risk getting CBD which hadn’t been tested. That’s the shared viewpoint of Cannabis Business Alliance executive director Mark Malone and Women Grow CEO Leah Heise, who have pointed out that the CBD market has worked successfully in the US and abroad for more than 10 years.
The DEA has been very secretive in their actions, trying to bring through the scheduling through stealth. Had their move been successful, CBD would have been classified, along with marijuana, as a Schedule I drug, therefore being federally prohibited. Even though CBD isn’t psychoactive, the DEA’s Chuck Rosenberg believed that there were grounds to ban the drug purely because it comes from cannabis – technically, this is true, as even industrial hemp is a strain of cannabis, but it’s not bracketed in the same group as most marijuana strains by most as the THC content (the cannabinoid causing psychoactive effects) is extremely low.
The DEA first tried to criminalize CBD in 2001, and were evidently unsuccessful, although that hasn’t stopped them from trying. Thankfully, their unfair move has been met with stiff resistance from a number of attorneys and scholars who have declared the DEA’s attempts as a work of illegal overreach. Considering the case was thrown out of court in 2001, you would think that the odds lie in favor of those supportive of CBD.
What does that mean for my CBD Oil?
You should be okay as the line between legal and illegal when it comes to cannabis is rather hazy. At the moment, CBD is not a Schedule I substance, the DEA are just trying to make it so by the ruling that they published in the recent Federal Register. What happens next is going to come down to what a federal judge thinks, and the consensus is that they would overrule the DEA’s move, based on preceding evidence. Should a federal judge make that overrule, any move that the DEA has tried to make in classifying CBD as a Schedule I drug would be a non-starter. So why are we, and others so confident that CBD is going to survive this attack by the DEA?
Let’s take a look at the Rohrabacher-Farr amendment, which is in place to protect state medical marijuana laws from interference by the DEA and Justice Department. While marijuana is only legalized in a few states, the legalization of CBD products minus the THC is much more extensive. Whether the DEA finds CBD to be illegal and classifies it as a Schedule I drug is ultimately irrelevant, since there are 28 states which allow medical marijuana, and a further 16 which are supportive of CBD-only products. Combine that and nearly all of America is protected from this outrageous overreach from the DEA.
Rohrabacher-Farr is a very good form of protection for CBD patients, there are a couple of flaws that could see it become unstuck. Areas that come under federal jurisdiction are not subject to the amendment and it requires reauthorization through Congress. The next hurdle is set to come in April 2017 when Rohrabacher-Farr will need to be reauthorized – with the current situation this could be an important date.
The laws on industrial hemp have historically been more relaxed than those for marijuana, and this is displayed once again via the 2014 Farm Act. States involved with cultivating hemp receive an exemption from the Controlled Substances Act, one which CBD would become subject to as a Schedule I drug.
Legal Precedent and History Points to DEA Failure
But perhaps the most telling thing of all is what happened when the DEA attempted to criminalize CBD in 2001. The previous time that the DEA tried this, they ended up being forced into court and lost the case – and there’s no reason to suggest that the same wouldn’t happen again. And while it’s a nuisance to those who have been involved with cannabis for decades, they probably shouldn’t be too worried, as nothing has changed in the 15 years or so that have followed.
Denver attorney Robert Hoban believes that it’s only Congress’ right to create a statute, not the DEA’s, referencing a hemp-related case that also took place In the early 2000s – HIA vs. DEA.
The DEA’s efforts to ban CBD comes from the fact that even though there is a very limited amount of the psychoactive THC in hemp, there are ultimately still traces of it. Although, to add some perspective, legal hemp-derived CBD must have less than 0.3 percent THC, while typical marijuana strains will contain 5 to 15% THC. The DEA’s hope is that the presence of THC is enough for hemp to be classified as a Schedule I drug and be banned.
Further proof of the DEA’s stealth with such matters is proven by when they tried to push through this action. In October 2001, the shockwaves of the 9/11 terrorist attacks were still reverberating around the nation, and what was happening on the Federal Register was hardly at the forefront of anybody’s minds.
But thankfully for the cannabis industry, a few people were playing close
attention – those who ran hempseed companies that would have been forced out of business should the DEA’s chicanery have stood.
With no precedent for such a case in 2001, it took more than two years for everything to unravel, leaving the cannabis world in limbo. But eventually, in 2003 and 2004, the US 9th Circuit Court came down on the side of the hempseed oil companies with two rulings that low-THC hemp could not be scheduled by the DEA as Congress had not regulated it as the Controlled Substances Act deemed they would have to. The DEA had claimed that their move to schedule CBD was an “interpretative rule”, but this was thrown out by judges who declared it an act of legislation, something which the DEA has no power to enact.
HIA v DEA Precedent Should Crush DEA’s Efforts
You may be reading this thinking that the CBD battle could be about to go through another lengthy two-year battle through the courts, although this seems unlikely since it looks as if the DEA’s case is even more poorly founded this time than it was the first. The legal precedent set by HIA v DEA should allow hempseed oil companies to easily crush the DEA’s 2016 attempts as, in practice, there is little unique about them.
Rosenberg and his DEA cronies aren’t stupid even if they are wrong, and they were well aware of what they were trying to do by making CBD a Schedule I drug, even though they failed to adequately cover their tracks. CBD wasn’t even the focus of the ruling, but Rosenberg still moved to ban it while taking on a question about CBD products free of other cannabinoids. But if you read the fine print, you’ll understand what their game was.
The cannabis scene has been hard at work trying to formulate a case that will successfully thrash the DEA once again, and it’s reasonable to expect a lawsuit to follow in the near future, and we should be optimistic about what could happen. The DEA hardly has a good record when it comes to hemp, and their opposition looks to be in possession of all the aces needed. That said, the DEA are smooth operators and CBD advocates will need to make sure they have all bases covered should it end up in a court room.
What now for all the CBD users out there? Stay calm and keep an eye on proceedings is your best bet – there’s no need to do anything rash.