The Federal Court of Appeals in San Francisco ruled in an unpublished Memorandum of Disposition this week that the Drug Enforcement Administration’s December 2016 Marijuana Extract rule change stands. The rule change added a new code number to the DEA rules for “Marihuana Extracts” to make it easier for the DEA to track and trace CBD and other Marijuana Extracts imported to and exported from the United States.
The troublesome part of the new code is that it redefines “Marihuana Extracts” as “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant.” The challenge to the rule was based on the expansion of the definition of Marijuana to all plants in the genus Cannabis, which could now arguably include extracts from hemp. The DEA made it clear in their rule statement: their policy is that “Extracts of marihuana will continue to be treated as Schedule I controlled substances.”
However, the 9th Circuit based their disposition on procedural grounds — the Hemp Industry Association’s arguments lost not because they were wrong, necessarily, but because they did not raise their arguments during a specified public comment period. The court did not decide whether the DEA has the authority to create the 2016 rule or whether expanding the definition of Marijuana to include all plants in the genus Cannabis exceeded the DEA’s authority. Specifically, under existing 9th Circuit Court precedent and the Controlled Substances Act (“CSA”), the DEA lacks the legal authority to add or remove substances from the Schedules within the CSA. The CSA permits only the Attorney General (or congress through legislation) to add or remove substances from the CSA.
This changes nothing. This changes everything.
The DEA’s new “Marihuana Extracts” rule went into effect in December 2016, so this week’s decision was not actually a change in policy at the DEA — that happened months ago. All that happened this week is that a three-judge panel quashed a challenge to the rule, a decision that will most likely be appealed. Cannabis in almost all forms is still illegal under Federal law, but also legal in some form in over 30 states and the District of Columbia. Hemp and marijuana are treated differently in some ways, and the same in others, often turning on some legal fiction that is unsupported by either science or common sense.
CBD derived from marijuana is legally equivalent to THC, heroin, and psilocybin.
While the DEA’s rule change did not add CBD to the official list of Schedule I controlled substances, the clear effect and stated intent of the rule change is to treat CBD as a Schedule I drug, just like THC, heroin, magic mushrooms, ayahuasca, and PCP. No one really expects the DEA to start raiding CBD supplement companies, but that risk is higher than it was last Thanksgiving, and slightly higher today than it was last week.
Published: May 04, 2018
Founder & Interim Editor of L.A. Cannabis News