The hemp industry is taking the DEA to court over a controversial new rule on marijuana extracts like CBD.
The Hemp Industries Association (HIA) on Friday filed a lawsuit against the U.S. Drug Enforcement Administration (DEA) in California federal court, seeking to overturn the DEA’s enacting of a rule that establishes coding for marijuana extracts, including cannabidiol (CBD).
The DEA’s rule, referred to as the “Establishment of New Drug Code for Marihuana Extract,” was published on December 14. The update in the Federal Register established a new drug code specifically for marijuana extracts. The change, which several media outlets falsely reported as meaning CBD was in turn illegal, caused a flurry of panic within the hemp industry.
Spokesperson for the DEA, Russ Bare, in turn clarified the administration’s move, claiming it didn’t have anything to do with re-scheduling CBD or hemp, but was meant to establish an easier and more accurate method for tracking scientific research. Distinguishing extracts from the rest of the plant, Baer claimed, would “make [the DEA’s] work more efficient.”
Despite the DEA’s explanation, HIA joined with RMH Holdings and Centuria Natural Foods to challenge the DEA’s rule. Denver’s cannabis-focused law firm, Hoban Law Group, is representing the coalition of hemp-related businesses.
“On it’s face, it seems like a benign act,” said Robert Hoban, managing partner for the Hoban Law Group, in a statement. “The simplest way is to say that the rule itself doesn’t track the statute and accordingly, it’s an invalid rule.”
The judicial review submitted by Hoban Law Group argues that the DEA neglected to follow procedures or make the findings required by the law to add to the schedules of the Controlled Substances Act.
The lawsuit, which asks the federal court to review the DEA’s final rule, reads:
“… The final rule creates this new drug code, indicative of being a controlled substance, for substances which are in fact not controlled pursuant to the (Controlled Substances Act). Specifically, the final rule dictates that the mere presence of ‘cannabinoids,’ which are not controlled substances, is the determinative factor of whether a compound is a ‘marihuana extract.’
“Further, the final rule overbroadly defines ‘marihuana extract,’ without reflecting that certain portions and varieties of the genus Cannabis sativa L. are congressionally exempted from the CSA and/or are exempted from being treated as controlled substances altogether pursuant to the relevant laws, as enacted by Congress.”
Hemp lawyers have also argued that the DEA’s rule is contrary to the 2014 Farm Bill signed by President Obama, which authorized the cultivation of industrial hemp, the plant most abundant in CBD.
DEA spokesman Bare responded to the lawsuit in an email to The Cannabist, maintaining that CBD oil and other cannabis-based extracts “have been and will continue to be Schedule I controlled substances.” He added that, “The CSA definition of marijuana also includes ‘every compound, manufacture, salt, derivative, mixture, or preparation’ of such parts of the cannabis plant – and CBD produced from the cannabis plant clearly falls within this category.”
Bare did note that the new coding system wouldn’t change the DEA’s enforcement priorities.
“The sky is not falling, but this is not some benign coding function either,” added Hoban. “At the end of the day, the DEA needs to sit down, read the Controlled Substances Act, read the farm bill and understand that what they’re saying has practical implications on commerce and on patients around this country. That’s not weight they should throw around so lightly.”
Medical Marijuana, Inc. CEO Dr. Stuart Titus released a statement in December in response to the DEA change in the Federal Register, saying that the new code “in no way affects the Company’s hemp oil, containing naturally occurring cannabinoids including CBD, or its operations.” He went on to explain that a ruling by the Ninth Circuit Court of Appeals holds that hemp products derived from the part of the Cannabis plant exempt from the Controlled Substances Act are therefore legal to import.
You can read Dr. Titus’ entire position statement regarding the DEA’s change in the Federal Register, here.