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DEA’s Ban on CBD Challenged in Federal Court

February 15, 2018
(Nastasic/iStock)

On Monday, sheriff’s deputies in Rutherford County, Tennessee, launched a series of coordinated raids across the district, a diverse and populous area in the state’s geographic center.

CBD is found in marijuana, a plant that’s banned at the federal level. But CBD is also found in industrial hemp—a plant that Americans can legally cultivate.

The triggering incidents, Sheriff Mike Fitzhugh later told reporters, was a child bringing home a piece of candy that contained CBD, or cannabidiol—a nonintoxicating compound present in the cannabis plant—and the resulting call to authorities from the child’s incensed parents.

But prior to December 7, 2016, neither Fitzhugh nor federal Drug Enforcement Administration agents would have been able to do anything about it.

CBD is found in marijuana, a plant listed in Schedule I of the Controlled Substances Act and thus banned coast to coast. But CBD is also found in industrial hemp—a plant that Americans can legally cultivate under the 2014 Farm Bill, and that Americans have always been able to import and use in the manufacture of soap, fiber, and other popular products.

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Botanically speaking, there’s not a shred of difference between the two plants: Both are cannabis Sativa under the Linnean definition. Legally speaking, the two do indeed have a binary difference: One is federally legal, and the other is not. Under federal law, “hemp” is defined as cannabis Sativa plants with less than 0.3 percent THC. Anything with more is “marijuana.”

Along with its sexier and more lucrative recreational marijuana industry, America also has a nascent industrial hemp industry, worth possibly half a billion dollars, compared to the $7 billion California’s marijuana industry is worth alone. The major difference is that there’s potential for a hemp industry in 50 states—or at least there was, prior to the DEA’s December 2016 decision that CBD, and any other “cannabis extract” that also contains a single cannabinoid, is absolutely marijuana and thus subject to enforcement.

Under federal law, “hemp” is defined as cannabis Sativa plants with less than 0.3 percent THC. Anything with more is “marijuana.”

Hence Monday’s operation. By the time “Operation Candy Crush” was through, 23 stores alleged to have sold CBD-laced candies were shut down as “public nuisances,” according to prosecutors, and 21 people were arrested. They’ll face indictments in state court that will be unsealed Friday.

The situation in Tennessee provided a timely and relevant backdrop for a hearing in federal court taking place a few thousand miles away in San Francisco. On Thursday, the US Ninth Circuit Court of Appeals heard oral arguments in Hemp Industries Association vs. DEA, a lawsuit challenging the DEA’s December 2016 decision lumping in CBD and any other cannabinoid extract into its definition of “marijuana.”

Judges will now weigh whether to strike the DEA’s ruling regarding CBD. And they may also decide the central questions at issue in Tennessee and other states where state and federal authorities are seizing hemp or CBD products, citing the DEA ruling: Is “cannabis” marijuana? And is “cannabis” banned under federal law?

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After hearing oral arguments Thursday, a decision could come anytime in the next three to nine months. The potential ramifications for the country’s hemp industry—as well as sick people in states that allow CBD, but not THC—are enormous. And there is very little evidence to guess how they will decide, aside from the questions asked in court Thursday.

For Bob Hoban, the hemp association’s Denver-based attorney, the law “is very clear,” he told a three-judge panel Thursday. “Cannabis is not a controlled substance,” and the DEA clearly overstepped its authority in adding cannabis extracts, and specifically CBD, to its list of banned substances without an act of Congress.

By declaring CBD banned while also allowing hemp cultivation under the farm bill, two branches of the federal government are giving conflicting advice.

To support this, Hoban has case law on his side, thanks to the Ninth Circuit.

In 2004, in a case now known as Hemp II, judges ruled that the DEA had no authority to regulate drugs that were not explicity scheduled—and that “parts of the plant are exempt” from the definition of marijuana and thus the CSA, Hoban told Leafly.

Since it was the DEA who clarified their definition of marijuana to include CBD, and not Congress adding to the CSA to include CBD, “this would cover that,” he said. Further, by declaring CBD banned while also allowing hemp cultivation under the farm bill, two branches of the federal government are giving conflicting advice. One is saying hemp is legal—the other is saying it’s not.

In making its case in 2016 and again in court on Thursday, the DEA cited both existing federal law and a pair of United Nations treaties, to which the US is a signatory: the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances. To comply with the US’s obligations to the treaty, which declares marijuana dangerous and banned, the definition must be updated to include a marijuana-like product such as CBD.

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Judges questioned whether the treaties also give the DEA leeway to expand its definition of marijuana.

The DEA “can do that, but that’s not what they did,” Hoban told Leafly. “It’s within their purview, but they did not follow the proper procedure. And I think they [the judges] got that.”

Thursday’s hearing drew a slew of attorneys from across the country as well as hemp industry figures. Opinion was split as to how the hearing went. “That was rough,” one said, finding an ill omen in the judges’ references to the UN treaties.

Hoban was sanguine. “They didn’t challenge that the genus ‘cannabis’ is not illegal,” he said. “And they didn’t challenge that cannabinoids are not controlled substances.”

Which means one of two things: They accepted Hoban’s argument, “or they completely disagreed,” he said.

Chris Roberts's Bio Image

Chris Roberts

Based in New York City, Chris Roberts has been writing about cannabis since spending a few months in Humboldt County in 2009. His work has been published in SF Weekly, Cannabis Now, The Guardian, High Times, and San Francisco Magazine, among others.

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  • Crucial Update! Really looking forward to this victory for us ALL! It’s all hempening! Thanks for this great article Chris!

  • DonR

    As a daily consumer of CBD, this one hits home with me. The DEA is turning into another ATF (remember Waco?) and attempting to become another military branch of the government. Let us hope that the judges have more than two brain cells to scratch together and stop this insanity.

    • Mesa Wright

      Agree, and we’ve been following this closely. This was a case of a Sheriff and his cronies who had nothing better than put together a “cool” name “Operation Candy Crush” and close 23 stores in one day arresting all owners and holding them with $25,000 bond each. Wow what do they do with their time other than NOT review all of the laws relating to their attempted bust! The judge ruled in favor of the 23 stores to reopen without CBD and forced the state to provide evidence that this was Marijuana and the defendants to provide evidence that it was Hemp. If the products are less than .3% THC per the statute and cited by the judge, then it will be deemed Hemp derived and legal. But the Sheriff and DA grandstanded and held a video press conference in front of a CBD selling store with padlocks to intimidate and bully it’s case. The judge slapped them down and ordered the stores reopened citing the proper statutes and demanding the DA provide evidence that it is more than .3% THC products that are sold, if so then it will be classified as MJ.

    • Austin

      They already are extremely militarized, it’s scary AF…

  • lovingc

    The world health organization has determined that CBD oil is healthful and should not be scheduled.

  • ESTEC_Energy

    As being FPL, a Fiscally Pragmatic Libertarian, I firmly believed the US Congress is the representation of the people in this Country, the USA. Furthermore, Congress with the approval of our Executive Branch approved the legal use of hemp including CBD’s. Furthermore, hemp’s legalization came about from our Constitution’s due process, and then even this approval was validated by the U.S. Courts. All three branches of Government, through checks and balances, verified that hemp was legal.

    I am baffled by the DEA’s actions which have not followed procedures of public comment to make changes, and then the subsequent intrusions into people’s lives. Moreover, I believe that any change from the definition of marijuana and hemp must come through the legislative branch of our government because that is where the legislative change was made.

    As for the UN treaty, we are an independent Nation. Under the U.S. Constitution, the Executive Branch must notify Congress if the President is pulling out of a Treaty. The process includes a part of a Treaty by logic, that is if hemp’s CBD was specified in the treaty. Congress was notified and verified about pulling out of these Treaties or parts of these Treaties when the President Agreed to sign the Farm Bill.

    Why has the DEA and the Justice Department gone rogue on the U.S. Constitution and the American Citizens? Why is due process not being followed?

    • Jesse Smith

      Because your fundamental premise is flawed: they are not acting in the service of the people anymore, but themselves. The more drugs become legalized, the less we need the DEA and that threatens people’s money. Not just the federal agents at the DEA who might lose jobs or income from work but sections of the prison-industrial complex to which we remand victims in the drug war. Drug testing companies such as those run by the husband of Diane Black, private prison firms like CoreCivic, formerly CCA, would be losing revenue without those drug convictions filling their prisons and peeing for job applications and parole and every time a guard feels like harassing an inmate.

      The root of all this evil is greed, and we have a nation at the mercy of the greedy. When the Citizens United decision came down we basically handed the keys to the kingdom to the thieves and let them run amok. Ever since, special interest lobbies for the rich have been ensuring they get richer, and removing obstacles to new ways to exploit the population. Look up “Regulatory Capture.”

      At this point, we are a nation at war, within and without. We are being attacked from outside by psyops campaigns and as a result attacked within by our own countrymen who see the boogeyman in anyone not like them. We are at war with our government who no longer represents We the People and their campaign contributor masters, to whom they owe the fealty of the almighty dollar.

    • ESTEC_Energy

      • E.L. Bl/Du

        yea, and all the politicians in THIS town all own dispensaries. NOW they banned US patients to g row our own within city limits, and now they are expannding to COUNTY wide. If you have less than 5 acres, you cant even grow your STATE LAW LEGAL 4 rec plants or Medical 6 plants either, but you can BUY theirs (grown with chemical fertilizers/ bug sprays and NO flushing) no thanks.

        When rec became legal everybody went nuts and you could see plants in almost every yard. They had to do something, too many are moving here to grow (whether they know how to or not) using chemicals which are killing our fish. (they said it was b/c they had too may complaints about smell.HA)
        In the states where its legal, its stressing the infrastructure, jobs, traffic, housing and people who live here. they should legalize it everywhere and stop the states from getting so stressed by influx of idiots thinking they can get rich quick. Think again, the fees are astronomical and they now have teams to inspect EVERY grow. You have to have a camera monitoring system that they can watch, and report bud wt, shake wt and ALL that comes off the plant. Reporting is monthly, and if you dont, they come and confiscate due to non compliance. Now they want to add another fee PER PLANT, about another $100/plant. If you are just growing for yourself, plan on about 2k to get up and running, and thats just the fees. We havent even gone into the cost of irrigation and dirt, fertilizer expenses etc. It is NO LONGER profitable for the single person to grow. They fixed that. Even if you sell to dispensaries, they dont pay the grower what they sell it for and it moves slow.. Lucky to break even. They want it that way so THEY can make all the profit. Even the Mayor is cookin the books, as Tom Petty said.

  • mas_smarba

    Big Pharma is terrified of an easy-to-grow effective analgesic and undoubtedly pressuring government .

  • CATRYNA49

    Sounds to me like everyone involved in this article is woefully ignorant about Cannabis (MJ and Hemp). I am so sick of the Federal government, along with the real “Powers That Be” having classed Hemp as a schedule 1 drug. Those that made it illegal back in the 30,s/40’s had a vested interest in their monopolies in the iron industry, paper, cotton, petroleum and pharmaceutical industries. All of these industries could easily be put out of business by the renewable Hemp. And, that is the bottom line. This was never a case of “drug abuse”, but everything to do with control of the individual citizen and their god given rights to healthful plants! I am happy that here in California I can grow the cannabis strains I need to control my pain and control my autoimmune issues. But, the fact that California put a restriction on growing Hemp, really pisses me off!

    • Robert Johnson

      Theyre gonna outlaw fruits and vegetables next, cuz processed foods, lust like prescription pills, KILL u faster than what mother Earth provides. Soon itll be called mother Koch, and ppl will ‘pay or else’ a lung tax on the air we use. Btw, Its impossible to grow hemp, its a byproduct of cannabis, exactly like straw. U cant grow straw, Ill kiss ur ass if u can show me a straw seed. Hemp IS the exact same, ANY part of the cannabis plant not used for medicine, IS hemp, the stalks, unwanted leaves, and the seeds, cuz these have ‘no medical value’, lmfao, and therefore ‘Hemp’ is the TRUE controlled substance the DEA is poised with protecting the world from, just as ridiculous if they were locking up farmers for straw. Our brains produce THC, proven fact, so can everyone’s head be arrested for violating the controlled substance act, for ‘production of THC’? CBD is in breast milk, so will the DEA start busting moms for ‘production of a substance containing CBD’? FOR PROFITS??? YOU FKN BET YOUR ASS THEY WILL, cuz these fkstains r criminals, DEA couldnt bust CIA drug smuggling right under their noses for 50yrs? 100s of 1000s of tons btw, and the FBI FAILED in their fiduciary duties for past 50yrs, while the DOJ and FOP have been busy arming themselves to the teeth, where theyre now an illegal standing army, and while COMPLETELY distracted with the war on ppl, there has been an express lane of REAL criminals flying right past them. Wallstreet crooks, banksters, insurance conartists, corporate polluters, and 2 faced politicians have all enjoyed the high life, cuz none in law enforcement have ANY real talents, just a bunch of ignorant bullies who can ONLY beat ppl. Need someone to kick in innocent ppls doors, steal their children, their homes, their assets, their careers, and their freedoms, for collecting rain water? Call a dumbass pig. Need someone with real investigative skills and talents, to find REAL CRIMINALS who r engaged in REAL criminal activity? DONT call the FBI, CIA, DEA, DOJ, FOP, or ANY of the alphabet soup agencies whove FAILED in their fiduciary duties to the ppl, and therefore these agencies are USELESS to the country, and should be ‘broken into 1000s of pcs and scattered to the wind’ (Kennedy was brilliant), and publicly hang those who cant ‘Investigate’ (FBI) REAL crooks, or penetrate the ‘secret societies’ Kennedy warned us of

  • My Grandma

    I use CBD daily. I use it to treat my severe anxiety and depression. I honestly don’t see what the big deal is with CBD. Its non-psychoactive. That means it doesnt get you high. So why would anyone ever want to repress its uses, when they do so much good for people like me with mental health problems? I can see where the THC is a bit scary for some people, because it does effect the brain in some interesting ways that haven’t been studied to the fullest extent possible, but in my opinion, we should be studying what good and bad that this plant does and making an INFORMED decision as soon as all the facts are out! Stop the madness and do the research.

    • Timbo1

      Big Pharma hates competition. Only reason.

  • Mrs. Fuxit

    George Washington was America’s First Great President. He grew hemp. John Adams was America’s Second Great President.
    He wrote an essay titled “How to Grow Hemp”. Donald J. Trump is America’s Forty-Fifth President. Can cannabis make him Great?
    https://uploads.disquscdn.com/images/f0bfb0ae7f4eb5b51c9a10885a750b00ea55e94b78600dd73c733d4a65cc7526.jpg

  • HeinekenPete

    … the fact that the DEA cites two United Nations treaties, the most recent one being 47 years old, the other 57 years old -the equivalent of the Dark Ages of Reefer Madness- show how outdated their argument is. It is well past time to acess the vast research into cannabis medicinal benefits that has been done since those times and amend those ancient treaties to reflect current realities. The DEA is making a last desperate effort to preserve their budget by attcking CBD & hemp.