How the DEA's Move Against CBD May Not Even Be LEGAL!

Haylie Slater
Dec 28, 2018
4 min read

The DEA’s attempt to criminalize the status of cannabidiol (CBD) in December 2016 threw the cannabis industry into an uproar. Hundreds of thousands of patients around the country rely on non-intoxicating CBD products to manage pain, inflammation, seizures, and other medical conditions. Hemp-derived CBD oil was, and continues to be, sold openly in American markets. I don't particularly remember there being a lot of light shed on this bull when it occurred, so I am digging deep and trying to understand EXACTLY what happened.

The DEA’s notice in the Federal Register on that day, however, sent that entire industry sector into turmoil. The supposed rule creates “unfair barriers for companies with cannabidiol in their products,” said Mark Malone, executive director of the Cannabis Business Alliance. “Patients will be forced to find cannabidiol from the unregulated black market.” Leah Heise, CEO of Women Grow, said the rule “has the potential to inflict substantial harm to a legitimate industry that has been operating legally worldwide for over a decade.” I mean, God FORBID our citizens find an alternative to deadly pain killers and a long road of pain without relief. We have plenty to say about that era of the CBD-bashing medical controversy. But we will save that lil nugget for a rainy day. ;)

Cloaked in the guise of a bureaucratic technicality, DEA Administrator Chuck Rosenberg made an aggressive bid to wrap CBD into the Controlled Substances Act as a federally illegal Schedule I drug. Am I the only one laughing out loud and smacking my knee? COME ON AMERICA - WE CAN DO BETTER THAN THIS.

So here's the tea. This is what happened, if you didn't catch the article in 2017.

The DEA introduced a new drug code for “marijuana extracts.” In the course of doing so, Rosenberg paused to consider the question of non-intoxicating cannabidiol (CBD). Rosenberg made it clear that the DEA considers all CBD to be illegal simply because it’s derived from a plant of the genus Cannabis.

Over a 48 hour span, attorneys and legal scholars (and entrepreneur/activists like Harborside Health founder Steve DeAngelo, below) have pushed back with force. Many are arguing that the DEA’s move is a clear instance of illegal agency overreach. It’s a move that the same agency tried 17 years ago, in fact. And that attempt was ultimately slapped down by federal courts. They attempted to put down hempseed oil in 2001.

What I loved was Steve Deangelo's Tweet thereafter : "DEA once again oversteps it's authority. Well, knock me over with a feather! Who would ever have expected that?"

Right? I feel ya brother.

UH OH. IS MY CBD ILLEGAL?? *vapes*

Probably not. No worries. It just depends on how you define “illegal.” Not to seem facetious but when you start parsing the finer points of cannabis law things quickly turn vague and shifty. By publishing a final rule in the Federal Register that week, the DEA has essentially staked out new legal ground around CBD. The agency has formally stated that the DEA believes CBD products to be illegal Schedule I substances.

Is that now the law? Not necessarily. A federal judge might well see things differently than the DEA administrator. In fact, there’s a lot of evidence to think that federal courts could and would invalidate the final rule as it pertains to CBD. We’ll get to that in a minute.

There are some safeguards definitely in place to protect users and patients who lean on cannabidiol in all it's forms for relief. If you are like me, you literally DEPEND on your local dispensary of CBD to help your chronic illness/nausea/anxiety/insomnia/seizures/pain ETC.

The first is the Rohrabacher-Farr amendment, which prohibits the Justice Department (of which the DEA is a part) from interfering in any way with state medical marijuana laws and regulatory systems. CBD products fall under the protections of that amendment. This includes so-called CBD-only states, which allow patients to possess cannabidiol oil but not intoxicating THC. So the DEA may consider CBD oil illegal, but the agency can’t enforce that opinion in any of the 28 medical marijuana states (plus the District of Columbia), or any of the 16 CBD-only states. Woo hoo!

The second protection is the 2014 Farm Act, which carved out an exemption to the Controlled Substances Act for states engaging in hemp cultivation pilot projects.

Basically, the DEA can not create a statute. Only Congress has the power to do so. They were attempting to slither through any and all loopholes they could sniff out and it isn't working.

There's more to come on this topic, but this is the gist for any who missed it! It's a slippery slope because it is, indeed, crappy news that the DEA insists on making things more difficult for those who simply want MEDICINE. But phenomenal news that we are surrounded by officials and professionals who stand up for us. Love it.

I hope you guys had a phenomenal Christmas and made a crap ton of memories with your family and pals.