DEA Just Says No To CBD


On Wednesday, December 14, 2016, the DEA quietly announced that they were moving Cannabidiol from an unscheduled, legal substance to an illegal substance, governed by Schedule I of the Controlled Substances Act.

Cannabidiol, also known as CBD is one of 113 currently identified cannabinoids. Cannabidiol is non-psychoactive and is found in marijuana and hemp plants alike. It has a broad range of medical uses. Early research has shown that CBD is an effective antispasmodic, as well as an anti-psychotic. Before Wednesday, CBD was a fully legal substance which could be made, sold, and distributed across the country. As a controlled substance under Schedule I, that is no longer the case.
As an illegal substance, CBD would fall into the same legal realm as marijuana and THC. If a business chooses to deal in CBD, then it must be grown, processed, and sold entirely within the boundaries of a single state. It also means that businesses will have to be licensed to engage in such activities. This will present a number of painful challenges for businesses that currently distribute CBD across multiple states or regions.

The DEA may have acted outside its authority when it made CBD subject to the Controlled Substances Act. In 2014, President Obama signed the Farm Bill into law which makes the entire hemp plant lawful. Hemp, while in the cannabis family, contains no more than .03% THC. Criminalizing any part of the hemp plant flies in the face of the Farm Bill. As an executive agency, the DEA has administrative discretion to create its own administrative rules, but those rules are subject to all federal laws. To put it plainly, the DEA’s new rule contradicts federal legislation and is likely illegal.

As the reasoning behind its decision, the DEA cited two UN treaties. The first treaty is the Single Convention on Narcotic Drugs. The United States is a signatory to this convention, but it was never ratified by the US Senate, which means that it does not act like law. The second treaty is the Convention on Psychotropic Substances. This treaty was ratified in 1980 but fails to mention CBD anywhere within its text, (most likely because CBD is not psychoactive.) Essentially, the DEA cites the need to comply with two treaties, one of which is not good law, while the other does not directly govern the chemical they wish to control. Neither one of these instruments directly governs that which the DEA seeks to do.

Currently, businesses have thirty days to comply with this new regulation. The DEA is already facing a backlash from law firms and business owners. Hoban Law Group, a Colorado law firm is threatening legal action. Strainwise Consulting will be closely monitoring the situation as it unfolds.

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