Ever since Dr. Sanjay Gupta brought to the world the story of little Charlotte Figi, the Colorado girl with severe epilepsy who found relief from using cannabidiol (CBD), there has been an explosion of companies hawking what they call “hemp-derived CBD oil” which they claim is legal in all 50 states.
It’s not. At least, that’s what the DEA is telling us in its latest clarification on the issue.
Notice how one reference to “CBD oil” is supported by the legality of “hemp oil.” CBD oil manufacturers often muddy the waters with references to industrial hemp.
“CBD (and even THC) found naturally in hemp products,” one manufacturer claims, “are legal at the U.S. federal level because hemp consumer products are legal at the federal level.”
Yes, indeed, “hemp oil” has been legal for decades.
In the early 2000s, the DEA tried to ban hemp food products due to their trace THC content. In the 2004 case, Hemp Industries Association v. DEA, the court found that Congress banned “marihuana” (the feds still maintain the spelling used in the original Marihuana Tax Act of 1937) and “synthetic THC.” Therefore, DEA can ban all synthetic THC, but they can only ban natural THC if it is within or extracted from “marihuana,” as it is defined in the law.
That Controlled Substances Act (CSA) definition is where the CBD oil purveyors find the loopholes they claim to be wiggling through. It reads:
“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 resins; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
In other words, according to the legal definition, these things are “marihuana:”
1. Live cannabis plants;
2. Dead cannabis plants;
3. Cannabis seeds;
4. Cannabis resin from any part of the plant;
5. Anything you derive from the plant;
6. Anything you derive from cannabis seeds;
7. Anything you derive from cannabis resin.
But, according to the legal definition, these things are the exceptions that are not “marihuana:”
8. Mature cannabis stalks;
9. Fiber from cannabis stalks;
10. Oil made from cannabis seeds;
11. Cake (flour) made from cannabis seeds;
12. Anything you derive from cannabis stalks, except resin;
13. Anything you derive from fiber from cannabis stalks;
14. Anything you derive from oil from cannabis seeds;
15. Anything you derive from cake (flour) from cannabis seeds;
16. Seeds that are incapable of germination.
One manufacturer explains that they “use the parts of the plant that are NOT marijuana—the mature stalks [#8] & sterilized seeds [#16].”
But the DEA is extremely dubious of that claim:
“According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana [#8 – #16], except for trace amounts (typically, only parts per million) that may be found where small quantities of resin [#4] adhere to the surface of seeds and mature stalk. Thus, based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds [#10].”
There are other attempts to fit CBD through a loophole.
“Cannabidiol is not listed on the Controlled Substances Act (CSA) Drug Schedule,” is given as a defense.
That is technically true. However, within “marihuana” is “anything you derive from the plant [#5 – #7]” except stuff from mature stalks [#12] and seeds [#10 – #11], and DEA is telling us CBD can only be derived from resin [#4] in flowers and leaves, or when trace amounts stick to the exterior of stalks and seeds.
Defenders of CBD oil’s legality state that “Natural cannabinoids in hemp products are exempt from DEA enforcement.”
But that’s only true for natural THC; the HIA v. DEA decision worked with THC because Congress defined synthetic THC and marihuana separately. The court wrote:
“If naturally-occurring THC were covered under THC, there would be no need to have a separate category for marijuana, which obviously contains naturally-occurring THC. Yet Congress maintained marijuana as a separate category.”
Another defender of CBD oil writes that “hemp that is cultivated in accordance with… the Farm Bill is expressly legal… [and] extracts from such a plant are legal.”
Section 7606 of the Farm Bill did define industrial hemp as cannabis plants with less than 0.3 percent THC. Hemp plants farmed in Europe are, indeed, cultivated at less than 0.3 percent THC.
The problem, though, is that the Farm Bill’s definition of hemp is just an exception to provide that “Notwithstanding the Controlled Substances Act… an institution of higher education or a State department of agriculture may grow or cultivate industrial hemp if… allowed under the laws of the State.”
That “notwithstanding” is a confusing word.
Think of it as “although” or “in spite of the fact that.” That means the Farm Bill’s definition is, in essence, saying, “although cannabis is an illegal plant [#1 – #2], we’ll let universities and state agriculture departments grow extremely-low THC versions of it.”
The bill further clarifies that this exception applies if “only institutions of higher education and State departments of agriculture are used to grow or cultivate industrial hemp.”
Therefore, if there exists a cannabis plant [#1 – #2], regardless of its THC content, anywhere it is grown, the DEA considers it “marihuana,” unless it was a hemp plant grown by a university or state agriculture department. Whatever you extract from a hemp plant [#5 – #7] is “marihuana,” except what you extract from stalks and seeds [#10 – #12], which the DEA says couldn’t possibly be CBD, unless that came from resin sticking to the stalks and seeds [#12], and all resin from anywhere on any cannabis plant [#4] is “marihuana.”
Now, to be perfectly clear, I am all for CBD oil.
I have seen health miracles occur for people because of CBD oil. I applaud companies that commit civil disobedience to provide CBD oil to patients. I champion patients who seek and acquire CBD oil.
My only complaint is with those companies that are enticing patients to buy and business owners to sell their product under the illusion that there is nothing illegal about CBD, when the DEA clearly believes it is.
Even though it is not likely the DEA is going to start raids over a non-psychoactive product that’s visibly curing epileptic kids, it is wrong to sell that product to consumers without fully disclosing the legal risks involved.
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