DEA Clarifies Marijuana Extract Rule and CBD Legality

DEA Clarifies Marijuana Extract Rule and CBD Legality

Several of you notice, on December 14, 2016 the Drug enforcement agency executed a regulation relating to CBD and marijuana extract known as the “Final Rule” creating a completely new Controlled Substance Code Number (7350) for marijuana extract” (the Rule). Among other things, the Rule alleged that cannabidiol (CBD) along with other cannabinoids were definitely part of the recently established drug code and, because of this, were classified as Schedule 1 substances under the Controlled Substances Act (CSA). Schedule 1 is regarded as the most restrictive class of drugs as well as being tied to drugs which have “no currently accepted medical treatment use” along with a “high potential for misuse.” We had written concerning the wrongheadedness of the Rule here and targeted my attention around the reality that the Drug enforcement agency presupposed to make illegal something (ie, CBD) which had been in no way illegal to begin with. CBD has not been placed as a controlled substance on the CSA. More importantly, CBD may be acquired from legal plants. We contended that the DEA had overstepped its authority. Because of this very reason, the DEA is now a defendant in a lawsuit submitted with the 9th Circuit. We predict that case to go very well.

This week, the Drug enforcement agency backed away from its position to some degree. More importantly, the DEA stated that CBD is actually legal if said CBD develops from a section of the cannabis plant that’s itself legal, for example the, but not limited to mature stalk of the cannabis plant, which happens to be excluded from the CSA’s definition of marijuana. To put it differently, the Drug enforcement agency ultimately stated that CBD isn’t unlawful in and of itself; instead, it’s legality is directly based on its origin. We’ve been saying this for some time, nonetheless we have to confess that it is bizarre being authenticated by means of an official Drug enforcement agency clarification!  Here is exactly what the Drug enforcement agency stated:

 

“The new drug code (7350) established in [the Rule] does not include materials or products that are excluded from the definition of marijuana set forth in the Controlled Substances Act (CSA). The new drug code includes only those extracts that fall within the CSA definition of marijuana. If a product consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360).”

 

This is very important. It’s the first time that the Government has expressly mentioned that cannabinoids (apart from THC which is independently scheduled) aren’t in and of themselves illegal substances. Most significantly, the Drug enforcement agency tacitly identified that CBD sourced from industrial hemp harvested lawfully pursuant to a State’s industrial hemp laws passed under the 2014 US Farm Bill is legal. The reason being “industrial hemp” is by itself specifically excluded from the CSA’s definition of marijuana in Section 7606 of the Farm Bill. Due to the fact, industrial hemp is excluded from the definition of the CSA, and a “product consisting exclusively of areas of the cannabis plant excluded from the CSA definition of marijuana” isn’t within the new drug code, then such product (in our case, CBD) is also ruled out from the definition of marijuana under the CSA and is thus legal, at the least at the Federal level. (Whether or not CBD could be made not legal on the individual state level is yet another concern entirely in which I will handle with a future post.)

Not any of this is completely new. But it’s helpful to have some clarification from the Drug enforcement agency.

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