In December 2018, the U.S. House voted overwhelmingly to pass the Farm Act Bill of 2018, which defines industrial hemp more broadly to cover all parts of the plant, including seeds, derivatives, extracts, and cannabinoids (with 0.3% THC or less). Additionally, the bill removed hemp (and CBD) from the Controlled Substance Act (CSA). This made CBD legal for topical use and ingestion. Both redefining industrial hemp and the removal from the CSA have been integral to the growth of the hemp industry, and the legality of hemp-derived CBD products, however, the agriculture, processing, and manufacturing of hemp and CBD has been a long, bumpy road.
In October of 2001, the DEA (Drug Enforcement Agency) published a ruling which stated industrial hemp products with even trace amounts of THC were unlawful. This interpretive rule banning any hemp-derivatives (i.e. hemp seed, oil, or food products) occurred with neither a compelling reason nor with the required public notice and comment period. This ruling was a substantial blow to the hemp industry and resulted in a lawsuit between the DEA, and the Hemp Industries Association (HIA). In February of 2004 (proceeding years of litigation), the Ninth Circuit Court of Appeals issued a unanimous decision in favor of the HIA.In December 2016, the DEA published a new drug code, which contradicted the Farm Bill Act of 2014, thereby resulting in another lawsuit between the DEA and the HIA. In April of 2018, the Ninth Circuit Court released a very short decision in favor of the DEA that did not classify hemp-derived cannabidiol (CBD) as a controlled substance, nor did it signify that the popular hemp product was federally illegal. Therefore, declaring CBD legal for ingestion and topical use. In fact, the ruling had no legal or practical impact on hemp or hemp products. Here’s why:
- The Ninth Circuit declared the decision has no precedential value – meaning it is not binding on other courts or future judicial decisions. The court even stated that the disposition was “not appropriate for publication,” further limiting its value.
- The ruling’s lack of significance is largely due to the fact that it was decided on procedural grounds, not on any matter of substance.
- The Ninth Circuit ruled that the HIA had failed to meet a widely-accepted principle of administrative law: Before you challenge a federal agency in court, you must first exhaust all of your administrative remedies – and in this case, the HIA had not participated in the DEA’s earlier public notice and comment period.
- The Ninth Circuit makes clear that the DEA’s Rule does not apply to hemp or hemp-derived products developed under state pilot programs authorized by the 2014 Farm Bill. The Court concisely states that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” Accordingly, other hemp products exempted from the CSA – such as non-psychoactive hemp products that were the subject of the 2004 Ninth Circuit decision – should also be exempted from the DEA Rule.
Perhaps even more significantly, during the litigation process, the DEA admitted that the marijuana extract rule did not apply to hemp. In a key legal brief, the DEA admitted that the Rule “does not apply to any substance that the CSA did not previously control as ‘marijuana.’ It simply requires that persons handling a subset of the materials defined as ‘marijuana’ write a different identification number on their administrative paperwork.”
The Controlled Substance Act (CSA) is the federal U.S. drug policy under which the manufacture, importation, possession, and use and distribution of specified chemicals and substances are regulated. The addition, deletion or change of schedule of a medicine or substance may be requested by the DEA, the Department of Health and Human Services (HHS), the Food and Drug Administration (FDA), or from any other party via petition to the DEA. Under Schedule I, a substance must meet the following three requirements:
- The drug or other substance has a high potential for abuse.
- The drug or other substance has no currently accepted medical use in treatment in the United States.
- There is a lack of accepted safety for use of the drug or other substance under medical supervision
|C-I||Substances have a high potential for abuse, have no currently accepted medical use in treatment in the U.S., and have a lack of accepted safety for use under medical supervision||Ecstasy (MDMA), heroin, LSD, marijuana, methaqualone, peyote|
|C-II||Substances have a high potential for abuse, which may lead to severe psychological or physical dependence, and have a currently accepted medical use (with severe restrictions)||Hydromorphone, methadone, meperidine, oxycodone, fentanyl, morphine, opium, codeine, cocaine, amphetamine, methamphetamine, methylphenidate|
|C-III||Have less potential for abuse than substances in C-I or C-II, and abuse may lead to moderate or low physical dependence or high psychological dependence||Hydrocodone/acetaminophen (Vicodin), Tylenol with Codeine, buprenorphine, benzphetamine, phendimetrazine, ketamine, anabolic steroids (Depo-Testosterone)|
|C-IV||Have a low potential for abuse relative to substances in C-III||Alprazolam, carisoprodol, clonazepam, clorazepate, diazepam, lorazepam, midazolam, temazepam, triazolam|
|C-V||Have a low potential for abuse relative to substances listed in C-IV and consist primarily of preparations containing limited quantities of certain narcotics||Robitussin AC, Phenergan with Codeine, ezogabine|
A high potential for abuse indicates a habit-forming behavior, and then a sharp decline in physical and mental health, however cannabidiol is neither addictive nor does it have the potential for abuse. In fact, some studies have found CBD to be an effective solution for addiction. Legal CBD has a multitude of practical applications.The second inconsistency is Americans are currently using CBD as a means of easing anxiety, stress, pain, and most notably, epileptic seizures in children. Thirdly, although much of the research surrounding CBD is anecdotal (due predominantly to prohibition), we do know for certain that CBD is non-psychoactive, meaning the user will not experience intoxication, regardless of the dosage. We also know there has never been a single reported death from ingesting or inhaling cannabis. As quoted by DEA Judge Francis Young:
“At present, it is estimated that marijuana’s LD-50 is around 1:20,000 or 1:40,000. In layman terms, this means that in order to induce death, a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. NIDA-supplied marijuana cigarettes weigh approximately 0.9g. A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.”