The DEA recently issued a new rule classifying cannabidiol (CBD) and other cannabis extracts as Schedule I substances. Critics are upset and have argued that the DEA has exceeded their authority.
Some critics, such as the hemp industry, have a point. Others, to be frank, do not.
The hemp industry argues that hemp cultivated for research purposes has been authorized by Congress and thus falls outside the jurisdiction of DEA’s authority under the Controlled Substances Act (CSA), meaning CBD derived from these hemp plants are exempt from treatment as a Schedule I substance.
Otherwise, according to the CSA: “The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” (See 21 USC 802(16). Tetrahydrocannibinols are also explicitly listed by the CSA as Schedule I drugs (See 21 USC 812 (c) (17).)
They have the authority; it is naïve and disingenuous to argue otherwise.
The impact of the new DEA rule on state-level legalization reforms will be minimal as long as Congress continues to pass annual appropriation amendments banning the DEA from using federal funds to subvert local laws. But there is a more important issue in play here, two actually.
First, the DEA is not going to surrender their authority to enforce marijuana prohibition. It is not only naïve to think they will, it is also stupid. But the industry representatives and advocates who act as if they can either bluff the DEA into doing so are not stupid. They are playing a public relations game, trying to persuade the public that the DEA is exceeding their authority and to persuade their constituents that they are effectively fighting the good fight and earning the financial support that keeps this fight going.
Second, and more important, there are some financial and political interests involved in this fight that think they can benefit from separating their interests from those of all cannabis consumers.
And this is the topic of this column.
There are people who have invested in the medical marijuana business who oppose legalization of recreational marijuana because it will reduce the profit potential of medical cannabis. In effect, they have no problem with the DEA enforcing prohibition as long as it doesn’t apply to them.
Another version of this is playing out at the state level. There are 16 states that have CBD-specific medical marijuana laws (Alabama, Florida, Georgia, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming). These laws have been adopted according to various rationales, and all of them are positive developments. But they are all ‘safe’ versions of recognizing the benefits of medical marijuana—as if they are okay simply because they don’t involve THC. You can hear their supporters explaining that these aren’t really medical marijuana laws to pro-prohibition voters and then hear the same politicians turn to talk to anti-prohibition voters and brag about how they’ve passed a medical marijuana bill.
The point here is that there are some folks involved in the legalization issue that are trying to have it both ways. They are against parts of prohibition because it serves their self-interest but not against all of prohibition, for the same reason and/or they think it is smart politics.
Well, the DEA just sent them all a message—prohibition is prohibition, and every state-level reform, even those involving non-psychoactive CBD, remains a clear violation of federal law.
There are no subtleties here. Prohibition has to go.
It’s not quite their objective, but the DEA has made this clear time after time, and the recent rule on extracts and CBD adds further clarity to this issue. And for this reason, the recent DEA rule is a welcome development, a reminder to any and all parties who are stakeholders, in any way whatsoever, in marijuana law reform that it is in their interest to end the federal prohibition on marijuana and remove it from the jurisdiction of the DEA.
There is not a medical marijuana issue, not a CBD issue, not a states-rights issue.
There is just one issue, and that is ending marijuana prohibition as federal policy and law.
The recent DEA rule should focus all affected parties, including the 16 CBD-only medical marijuana states, on the need for unity regarding this fundamental issue.
Previously in Pot Matters: DEA Finds Prohibition Increasingly Difficult to Enforce
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