DEA Announces Newly Legal Leeway About CBD

By J.J. McCoy, Senior Managing Editor for New Frontier Data

And just like that, the DEA now says that CBD with 0.3% THC or less is legal for purchase or sale nationwide. It may also be imported to or exported from the United States without restriction unless U.S. Customs and Border Protection steps in, and that, too, may be changing.

An internal directive issued May 22 clarified that “products and materials that are made from the cannabis plant and which fall outside the Controlled Substances Act (CSA) definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations.”

The surprise, unpublicized move by the DEA late last month marked a dramatic about-face by the agency. Reportedly motivated by “numerous inquiries,” the pivot represented a stark reversal from the DEA’s stated position of just 17 months earlier.

“Does it create a threshold for a standard? No,” said Patrick Goggin, asenior attorney at Hoban Law Group, who served as co-counsel in the seminal HIA v. DEAcases in the early 2000s. “But it does create a limit, that [DEA agents] need to show more than a mere level of cannabinoid. This is the common ground that we could get to… clear up confusion among sister agencies where the DEA has a great amount of influence.”

In December 2016, the DEA issued an update in the Federal Register establishing a new drug code for “marihuana extracts.”The new classification applied to all “extracts that have been derived from any plant of the genus Cannabis and which contain cannabinols and cannabidiols.”

The DEA had held that since hemp comes from the same genus as federally prohibited marijuana, it was de facto outlawed by the CSA. As was referenced in the new directive, the HIA had won a 2004 case after a similar action by the DEA; the court found that industrial hemp was legal for import and sale in the U.S.

Nevertheless, the 2016 move essentially said that people might be able to grow hemp, but to extract CBD oil from it would be a federal offense. Even given DEA’s new perspective, the agency reminds that importation/exportation of CBD products also falls under the discretion of the U.S. Customs and Border Protection as overseen by the U.S. Department of Homeland Security. That agency’s hemp import policy reads that “non-sterilized hemp seeds remain a Schedule I controlled substance.”

“I think it was an extraordinary set of circumstances that resulted in the industry working in an interim partial solution with the DEA,” said Goggin. “That doesn’t happen too often. We feel that it shows the strengths of the emerging industry, and that its time has come and that its voice is being heard.”

Stakeholders say that such lack of policy consistency means that hemp should be formally, federally removed as a Schedule I drug. While the Farm Bill of 2014 made industrial hemp-derived products, including CBD, legal to sell and use, there remain laws on the books which create confusion about the topic. It is hoped that a proposed bill sponsored by Sen. Mitch McConnell (R-Ky.) will declassify hemp from its Schedule I status and eliminate once and for all any confusion about CBD’s legality.

J.J. McCoy, New Frontier Data Senior Managing Editor

J.J. McCoy

J.J. McCoy is Senior Managing Editor for New Frontier Data. A former staff writer for The Washington Post, he is a career journalist having covered emerging technologies among industries including aviation, satellites, transportation, law enforcement, the Smart Grid and professional sports. He has reported from the White House, the U.S. Senate, three continents and counting.

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