The DEA Issues Memo—Hemp Derived CBD is a Schedule I Drug and Always Was
Posted on Friday, 17 March 2017
By Keith Mansur/Oregon Cannabis Connection.
After weeks of upheaval and many arguments in the cannabis and hemp industry over the federal legal status of hemp derived CBD, the DEA issued a memo clarifying the issue. They explain that, though industrial hemp may have some exemptions, CBD produced from any cannabis plant is still considered a Schedule I Controlled Substance under the Controlled Substances Act.
According to the memo, all derivatives of the plant which come from the flowering tops, resin, and leaves of cannabis are considered to be within the CSA definition of marijuana. They explain that, “cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts.”
“Based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds,” the memo states.
The memo references their decision in footnotes in the memo. One footnote is from the same case many medical hemp farmers (hemp CBD farmers) used to claim their product was exempt from the CSA. They explain in one footnote:
However, as the Ninth Circuit stated in Hemp II (See Hemp Industries Association v. DEA, 357 F.3d 1012 (9th Cir. 2004) (Hemp II), “When Congress excluded from the definition of marijuana ‘mature stalks of such plant, fiber . . . , [and] oil or cake made from the seeds,’ it also made an exception to the exception, and included ‘resin extracted from’ the excepted parts of the plant in the definition of marijuana, despite the stalks and seed exception.”
Thus, if an extract of cannabinoids were produced using extracted resin from any part of the cannabis plant (including the parts excluded from the CSA definition of marijuana), such an extract would be included in the CSA definition of marijuana.
Under this ruling the medical hemp growers are apparently restricted to their own state for sale of their products, as we explained in our article in December. CBD, whether industrial hemp derived or extracted from regular medical marijuana plants, is not legal for interstate trade if it is a Controlled Substance. We understood back in December the new definition was finally capturing CBD, but that was not the case. The DEA said it was capturing it all along.
However, medical hemp companies like the Stanley brothers’ Realm of Caring Foundation still promote the idea that it is not. They refer to the farm bill and the ruling mentioned previously as their defense, but the truth is anyone shipping CBD products across state lines is likely breaking the law, at least in the eyes of the DEA.
Also, the FDA cracked down on CBD companies back in 2015. At that time many companies were touting the medical benefits of CBD extracts but the FDA has yet to approve CBD, or any marijuana derived substance, as an approved medicine in the United States. Many products they tested had no CBD in them, or very minor amounts. But since then, substantial cultivation of medical hemp has occurred nationwide and most of those companies want to sell the product as a medicine and over state lines.
Before Trump, or BT as I like to say, it may not have been a major problem, but now its harder to tell but it doesn’t look good. With a new Attorney General suffering from reefer madness delusions, and a new Federal Drug Administration head that is straight from big pharma, the medical hemp industry may be in for a very bumpy ride. And, if you are sending your CBD extracts out of your state, you should be very weary.
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