The Drug Enforcement Administration (DEA) has issued a new clarification about the coding of marijuana extracts that rebuts the claims by sellers of “hemp-derived CBD oil” that their product is “legal in all 50 states.”
CBD, or cannabidiol, is the second-best known cannabinoid occurring in the cannabis plant. Delta-9 tetrahydrocannabinol, or THC, is the best-known, of course, as it is the cannabinoid that produces the psychoactive “high” from smoking marijuana.
How CBD Escaped Being An Illegal Drug
The intentional obfuscation of the so-called legal CBD oil issue was born in the battles over industrial hemp. At the turn of the century, the DEA had attempted to classify basic hemp foodstuffs, like hempseed and hempseed oil, and hemp body products, like lotions and soaps, as controlled substances, because they contained trace amounts of THC.
The DEA’s authority over drugs comes from the Controlled Substances Act (CSA), which defines “marihuana” (the spelling used in federal law that dates back to the Marihuana Tax Act of 1937) like so (emphasis mine in all quotations):
The term ”marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
As part of their control over marihuana, the DEA placed tetrahydrocannabinols (THC and its variants) under the definition of hallucinogens, which includes LSD, magic mushrooms, mescaline, peyote, and DMT, all banned as illegal, non-medicinal Schedule I drugs.
However, cannabidiol is noticeably absent from the drug schedules; as a non-psychoactive molecule, it wasn’t given much thought.
After lengthy legal battles, the Ninth Circuit Court of Appeals ruled in 2004 that the DEA “cannot regulate naturally-occurring THC not contained within or derived from marijuana.” This is why Americans can legally import hemp cloth, hempseed oil, and hemp paste. This is why Americans can buy hemp soap, hemp lotions, and hemp foods at the grocery store. Even though they contain trace amounts of THC, that THC didn’t come from the resin of cannabis plants, so the DEA must allow it.
The DEA had originally fought the ingestible hemp products for fear it would confound urine testing for illegal marijuana use. Hemp products, however, are made from cannabis plants testing at below 0.3 percent THC. They contain only minute amounts of THC so low it’s almost impossible to to eat enough to fail a drug test.
The Rise of Medicinal Cannabidiol
In this decade, Americans began to rediscover the medicinal benefits of CBD. Parents of autistic and epileptic children in medical marijuana states started finding that administering cannabis oil high in CBD to their kids had remarkable benefits.
In 2013, Dr. Sanjay Gupta broke the story to the nation by illustrating the case of Charlotte Figi in Colorado. She was recovering from Dravet Syndrome, a form of severe childhood epilepsy, through the use of CBD oil. Dr. Gupta emphasized to his audience that CBD doesn’t cause little Charlotte to experience a “high”.
Now that CBD had emerged as a non-psychoactive miracle cure for sick children, there arose a huge demand across the country. In 2014, Utah passed a law that began a tidal wave of similar laws across sixteen states in the Midwest and South, allowing for the use of non-psychoactive CBD oil for kids with seizure disorders.
The problem with most of those laws is that they only provide safe harbor for someone who has acquired the CBD oil from out-of-state. Thus, parents in, say, Georgia, had to drive to Colorado to get the CBD oil, usually illegally, as they wouldn’t have the time and money to relocate to Colorado long enough to become residents to qualify for medical marijuana cards. Then they would have to break state and federal law trafficking it back to Georgia. Some would just move to Colorado instead, leaving behind families, friends, and careers to heal their child.
Meanwhile, Congress had passed the Farm Bill in 2014, which explicitly defined industrial hemp as any cannabis plant “with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent,” so states with industrial hemp laws could go forward with their programs while states that ban hemp still do.
Enter the “Hemp-Derived CBD Oil” Salesmen
This all led to entrepreneurs exploiting what they believed were big loopholes in federal laws that allowed them to produce and sell CBD oil legally in all fifty states. They started selling what they called “hemp-derived CBD” products. They argued that if the DEA ”cannot regulate naturally-occurring THC” in stalks and seeds, then they cannot regulate naturally-occurring CBD in stalks and seeds, either.
Then, in December of last year, the DEA published a new rule creating a tracking code for marijuana extracts. Many media outlets reported this as the DEA “making” hemp-derived CBD illegal, but cannabis law experts pointed out it always has been illegal and the new code merely allows the DEA to better track different illegal marijuana products.
In this latest clarification, the DEA agrees with those experts, stating that “The new drug code is a subset of what has always been included in the CSA definition of marijuana.” So, anything that is extracted from what is legally considered marijuana, which is everything but the stalks, fiber, and oil or cake from seeds of cannabis plants, is illegal.
But what about the CBD that can be extracted from stalks or hempseed oil? One manufacturer, Medical Marijuana Inc, claims that’s where they get their legal hemp-derived CBD oil:
The key words here for us are “mature stalks” and “oil or cake made from the seeds” and “sterilized seeds.” Even though it’s a mouthful, the government draws a clear line in the sand as to what parts of the plant. These “not marihuana” parts of hemp are the parts that we use to make our CBD hemp oil products.
Like many other hemp companies, we too import hemp oil from Europe. This hemp oil, naturally abundant in CBD, is what’s at the core of all our brands and products. It’s not an extract, it’s not part of marijuana; it’s a natural part of legal hemp oil, as inseparable from that oil as vitamin C is from orange juice.
The DEA does not believe such a legal product really exists.
According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. Thus, 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 DEA is basically saying that anybody who’s manufactured CBD oil in any sort of quantity that would provide medical benefit had to have gotten it from flower and leaves, because there isn’t any CBD in hemp stalk or hemp seed that isn’t from resin that stuck to them. Even that resin-bound CBD would require so much hemp that they wouldn’t be enough to produce a product for the price at which they’re selling CBD oil (currently $175 a gram).
Plus, there’s an additional problem with the CBD coming from that resin stuck to the seeds and stalks – it falls under the CSA definition of marihuana. While the CSA does exempt “the mature stalks of such plant, fiber produced from such stalks, [and] oil or cake made from the seeds of such plant”, the DEA points out how the Ninth Circuit recognized the CSA’s definition of resin supersedes the exceptions.
“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.”
But confounding the issue further is the 2014 Farm Bill. The exceptions that the DEA and Medical Marijuana Inc are talking about are exceptions to the definition of marihuana.
Defenders of hemp-derived CBD argue that the Farm Bill defined industrial hemp as cannabis plants with less than 0.3 percent THC, so ”hemp that is cultivated in accordance with … the Farm Bill is expressly legal …. [and] extracts from such a plant are legal.”
But Section 7606 of the Farm Bill states that only “an institution of higher education or a State department of agriculture may grow or cultivate industrial hemp if… allowed under the laws of the State.” It does define low-THC cannabis as industrial hemp, but since the section begins “Notwithstanding the Controlled Substances Act,” the CSA’s proscriptions against “all parts of the plant Cannabis sativa L.” still apply to the non-higher-ed and non-state-ag-dept cannabis farms in Europe.
What Happens to CBD Oil Now?
It’s anybody’s guess whether the DEA will want to flex its muscle in enforcing the prohibition of CBD oil. There is still some doubt whether the Sessions Department of Justice will go after marijuana containing THC used by adults who like to get high.
I believe the prospect of local news reporting on the DEA busting stores that sell CBD products that don’t get people high to desperate parents of severely debilitated kids for medical purposes seems damaging enough to public relations that the DEA probably won’t go that route.
But I also believe that the DEA filing injunctions against the companies manufacturing European-sourced CBD products and issuing warrants for seizure of records, inventory, and assets isn’t too far fetched.
If Congress fails to pass H.R. 715, which would remove cannabidiol from the CSA and reschedule marijuana out of Schedule I, then the next path for legal cannabidiol products comes from the states that are currently growing hemp in accordance with the Farm Bill.
The DEA acknowledges that “if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana,” it would not be classified as marijuana, marijuana extract, or a tetrahydrocannabinol.
In Oregon, I have interviewed licensed hemp farmers who are doing just that. Rather than cultivate varieties of hemp prized for seeds or fiber, they are working on maximizing the flower production of low-THC cannabis to boost its CBD content for medical extracts.
I have no issue with adults who wish to produce, sell, or buy any drug, What you choose to do with your body and mind is solely up to you. However, companies that exploit the desperation of parents of epileptic kids by selling them CBD oil at jacked-up prices, while claiming those parents aren’t breaking the law, deserve all the critical opprobrium the cannabis community can muster.
Interview with the CEO of Medical Marijuana Inc
Two years ago, I interviewed the CEO of Medical Marijuana Inc, Stu Titus, who made the claim then that his CBD oil products are “legal to import and sell in all fifty states.”