An appeal challenging the Drug Enforcement Administration’s (DEA’s) “Establishment of New Drug Code for Marihuana Extract” has failed – but the battle isn’t over yet.
Back in 2016, the U.S. Drug Enforcement Administration’s (DEA’s) publishing of a Final Rule on the coding of marijuana extracts created confusion – was hemp-derived CBD legal or not?
Initially the Hemp Industries Association (HIA) thought CBD was in the clear (a position it changed after review), but Hoban Law Group immediately sprang into action – seeing the threat and preparing to file a petition that the HIA then joined.
15 months later and Hoban Law reports the Ninth Circuit Court of Appeals denied the Petitioners’ Petition for Review of the DEA’s Final Rule on April 30.
“The Order, issued by a panel of 3 appellate judges found that invalidation of the Final Rule was unnecessary due to the Farm Bill’s hemp amendment and that its language pre-empts the Controlled Substances Act and DEA’s related authority,” states the firm.
What the judges were saying is that the Final Rule does not interfere with lawful, hemp-related business activities – which the Administration certainly appears to be doing both directly and indirectly. A very recent example we mentioned last week, where in Wisconsin the production, sale and possession of CBD, in all but very limited circumstances, has been deemed illegal based on DEA say-so.
The HIA has seen some heavy-duty support in its efforts, including a bipartisan coalition of 29 Members of U.S. Congress who filed an amicus brief stating the DEA appeared to be interfering with the sector.
“Given the pervasive confusion and irreconcilable conflicts of the law that have led to product seizures, arrests and criminal charges against those involved in the lawful hemp industry, the Petitioners believe that the Final Rule must be invalidated, absent the Court clarifying and further resolving these conflicts and their severe consequences,” said Hoban Law’s Bob Hoban.
The firm says it is working with the Petitioners regarding their next move. The HIA has had little to say on the outcome, which isn’t surprising seeing that the situation is still fluid.
The DEA considers CBD a Schedule 1 substance. However, in order for a substance to be Schedule 1, it must have no currently accepted medical use, a high potential for abuse and dependency – and cannabidiol doesn’t fit. In fact, the World Health Organisation (WHO) Expert Committee on Drug Dependence (ECDD) recently acknowledged its medical potential and stated:
“Current evidence also shows that cannabidiol is not likely to be abused or create dependence as for other cannabinoids (such as Tetra Hydro Cannabinol (THC), for instance).”