When the Drugs Enforcement Agency announced before christmas its decision to designate hemp-derived non-psychoactive cannabinoids such as CBD as ‘marihuana extract’, the US hemp industry was caught very much off guard.
After all, most had been complying with Congress’ legal parameters for the production and consumption of hemp-derived products containing cannabinoids, enacted by Sec. 7606 of the Agricultural Act of 2014 (Farm Bill).
DEA says Hemp derived CBD is a marihuana extract and should have Schedule 1 Status
But it would seem, the DEA had other ideas.
Its ‘final ruling’ would see hemp derivatives like CBD included in the Controlled Substance Act and sharing the same Schedule 1 status as THC. This means they would be considered as having a high potential for abuse and lacking in any therapeutic benefit.
The Hemp Industries Association say this ruling, if upheld, would put the livelihood of the many law-abiding companies and individuals at risk who have invested millions of dollars in infrastructure to comply with federal law.
They believe the DEA has gone beyond its jurisdiction in trying to amend the Controlled Substance Act, which can only be done by Congress.
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Hemp industry tries to block DEA ruling
It is for this reason that the Hemp Industries Association filed a Petition for Review on January 13, 2017, in the Ninth Circuit Court of Appeals in San Francisco, seeking to block the implementation of the Drug Enforcement Administration’s (DEA) proposed ruling.
“Hemp-derived products containing cannabinoids are an increasingly in-demand category within the hemp market—and U.S. consumers constitute the largest market for hemp products worldwide,” said Colleen Keahey, Executive Director of the Hemp Industries Association.
“We are committed to defending the rights of our members, of entrepreneurial hemp farmers, businesses and consumers, who all are acting entirely within the legal framework of the CSA and Farm Bill, including those adversely affected by trying to source American-grown hemp and hemp derivatives to supply this demand. The DEA’s attempt to regulate hemp derived products containing cannabinoids lawfully sourced under the CSA, and farmed and produced under the Farm Bill in states like Kentucky and Colorado, is not only outside the scope of their power, it’s an attempt to rob us of hemp’s economic opportunity.”
Previous attempts by DEA to reclassify hemp products defeated
It’s not the first time that the DEA has tried to flex its muscle regarding hemp.
Between 2001-2003 the Agency contended that hemp food products such as cereals, hemp seed and hemp oil, are a Schedule I substance due to trace insignificant residues of tetrahydrocannabinol, or THC. However, in 2004, the Ninth Circuit Court of Appeals ruled in response that hemp is not included in Schedule I; that the trace THC in such products is similar to trace opiates in poppy seed bagels, and does not render them controlled substances.
The Hemp Industries Association says this previous favourable court ruling gives legal precedent for the current petition, asserting that cannabinoids derived from lawful portions and varieties of the Cannabis plant exempted from control under the CSA and through the Farm Bill, may not be regulated as “marihuana” or “marihuana extract” by the DEA.
“Over a decade ago, the Ninth Circuit held that non-psychoactive hemp is not controlled by the CSA,” said Patrick Goggin, co-counsel for the HIA. “The DEA is again attempting to schedule under the CSA cannabinoids and non-psychoactive hemp beyond its authority. We believe the Ninth Circuit will invalidate this rule just like it did in 2004.”
Time will tell whether this legal precedent stands up to legal scrutiny and hemp derivatives like CBD live to fight another day.