The DEA’s attempt to criminalize the status of cannabidiol (CBD) earlier this week has thrown the cannabis industry into an uproar. Hundreds of thousands of patients around the country rely on non-psychoactive CBD products to manage pain, inflammation, seizures, and other medical conditions. Hemp-derived CBD oil was, and continues to be, sold openly in American markets.
The DEA’s notice in the Federal Register on Wednesday, however, sent that entire industry sector into turmoil. The rule creates “unfair barriers for companies with cannabidiol in their products,” said Mark Malone, executive director of the Cannabis Business Alliance. “Patients will be forced to find cannabidiol from the unregulated black market.” Leah Heise, CEO of Women Grow, said the rule “has the potential to inflict substantial harm to a legitimate industry that has been operating legally worldwide for over a decade.”
Cloaked in the guise of a bureaucratic technicality, DEA Administrator Chuck Rosenberg made an aggressive bid to wrap CBD into the Controlled Substances Act as a federally illegal Schedule I drug. You can read more about the rule’s specifics here.
To recap: The DEA introduced a new drug code for “marihuana extracts.” In the course of doing so, Rosenberg paused to consider the question of non-psychoactive cannabidiol (CBD). Rosenberg made it clear that the DEA considers all CBD to be illegal simply because it’s derived from a plant of the genus Cannabis.
Over the past 48 hours, attorneys and legal scholars (and entrepreneur/activists like Harborside Health founder Steve DeAngelo, above) have pushed back with force. Many are arguing that the DEA’s move is a clear instance of illegal agency overreach. It’s a move that the same agency tried 15 years ago, in fact. And that attempt was ultimately slapped down by federal courts.
Is my CBD oil illegal?
Probably not. It depends on how you define “illegal.” Not to get cute, but when you start parsing the finer points of cannabis law things quickly turn vague and shifty. By publishing a final rule in the Federal Register this week, the DEA has essentially staked out new legal ground around CBD. The agency has formally stated that the DEA believes CBD products to be illegal Schedule I substances.
Is that now the law? Not necessarily. A federal judge might well see things differently than the DEA administrator. In fact, there’s a lot of evidence to think that federal courts could and would invalidate the final rule as it pertains to CBD. We’ll get to that in a minute.
First, you should know that there are two prominent safeguards in place protecting patients who currently purchase and use CBD products.
The first is the Rohrabacher-Farr amendment, which prohibits the Justice Department (of which the DEA is a part) from interfering in any way with state medical marijuana laws and regulatory systems. CBD products fall under the protections of that amendment. This includes so-called CBD-only states, which allow patients to possess cannabidiol oil but not psychoactive THC. So the DEA may consider CBD oil illegal, but the agency can’t enforce that opinion in any of the 28 medical marijuana states (plus the District of Columbia), or any of the 16 CBD-only states.