Know the Facts on CBD, Volume 3

This article is a continuation of last month’s initial installment on CBD. To better understand the discussion, CLICK HERE to view our previous article

“Is CBD legal? The answer is unequivocally, yes. But also, no. But yes. Really, it depends on whom you ask.”

The more we’ve dug into the topic, the more clearly our initial answer has rung true. It’s an entire tacky Christmas sweater in a single thread, the gaudily festive patterns only revealing themselves when woven in perfect alignment. Once unraveled, it’s all but impossible to reconstruct with perfect accuracy. But we’re going to try.

Through Section 7606 of the Agricultural Act of 2014 (AKA, the Farm Bill), Congress upended the tenets of the Controlled Substances Act that delineated the difference between legal industrial hemp and the still-highly illegal marijuana. Using pre-emptive language to eliminate any question as to their intention, they changed the definition of legal industrial hemp to “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” This is important because up until this point, the definition of hemp was limited, via the CSA, to the non-resinous components of the cannabis plant, i.e., the stalks, seeds, etc. However, under this new legislation, that definition is extended to the entire plant, including the flower—the part where the medicine is made. The only delineation under the new paradigm is THC content. Though CBD is not specifically mentioned in the bill, hemp and medical cannabis proponents insist that its legality is implied.

The DEA seem to disagree, though they have continually talked from both sides of their mouth on the subject. In 2016, they wrote what is now being referred to as the “Final Rule,” in which they specifically listed CBD as a marijuana extract and therefore, a controlled substance.

“Everyone completely panicked,” Katarina Maloney of Hemp Hookazz recalls. “They started saying, ‘CBD is illegal!’ So, the DEA again made a statement that this is only for the extracts of marijuana; it’s more of a house-cleaning rule than anything.’”
She is correct to a point. The DEA did, in fact, claim that the Final Rule only applies to marijuana as defined in the CSA, but in doing so, seemed to ignore the fact that the CSA’s definition of marijuana has now been pre-empted by that of the Farm Bill. This is illustrated in further clarifications of the rule wherein they argue that CBD cannot be extracted in a significant amount from any part of the plant aside from the flower, which they still insist is marijuana. Erai Beckmann, Brazil’s medical cannabis crusader, as well as management consultant for the California-based cannabis company, Humanity, is no fan of the DEA’s stance on the issue, but insists he understands their reasoning in this particular case.

“They’re like, ‘Hey, man, you’re growing fucking marijuana,’” he suggests, speculatively. “Like, ‘What are you trying to do?’ The reason the DEA doesn’t want that is because they can’t then control it—they’re not going out into a hundred acres of ‘CBD marijuana’ fields to sort out what is what . . . Who knows? These guys could be producing hundreds of pounds of marijuana unbeknownst to them, doing whatever the hell they want with it.”

Based on this logic, Mr. Beckmann would argue that CBD, at least in regard to interstate commerce, really isn’t legal yet. But the argument he is making is one of practicality, not constitutionality. He’s simply acknowledging that under today’s system, the DEA’s interpretation of the law is the law, at least until it’s refuted in court.

Congress however, insists that the DEA’s actions against CBD directly contradict the law of the land as set out by the Farm Bill. When the Hemp Industry Association challenged the DEA’s Final Rule in court, several members of the legislative body who wrote and supported Section 7606 submitted an amicus brief backing the plaintiffs. They made their views on the subject, along with their intentions in passing that portion of the Farm Bill, crystal clear.

“Through Section 7606,” the brief reads, “Congress explicitly defined ‘industrial hemp’ as the Cannabis plant with a THC content of ‘not more than 0.3%.’ In defense of its action, the DEA has asserted that all cannabinoids are controlled substances by virtue of the fact that they are concentrated in the flower of Cannabis plants. This argument may have had merit prior to the Farm Bill, but it is blatantly contrary to the text of the Farm Bill, which explicitly exempted all parts of industrial hemp, including its flower, from the definition of marijuana.”

In case there was any ambiguity left about the specific plight of CBD, they later stated, “Congress recognized and acknowledged the need for research and development to investigate hemp-derived products, including CBD, and gave states broad discretion to create pilot programs to accomplish this research.”

It’s difficult to argue over a law’s interpretation when the authors of that law slap you in the face with it. Yet, notwithstanding the clear language of the amicus brief, the 9th Circuit Court ruled in favor of the DEA.

It wasn’t a victory by any stretch, but there were some bright, silver linings around the clouds of defeat. First, as the court stipulated, their ruling did not set a national precedent, meaning that the DEA couldn’t cite it in future cases. The primary reason listed by the court for their decision was a simple technicality:

After the rule was announced by the DEA, there was the requisite question/comment period wherein affected parties could pose challenges or ask for further clarification. During this time, the HIA remained silent. According to the rule handed down, this voided their right to contest the Final Rule in court.

Moreover, as Beckmann points out, another “positive thing that came out of that case is that in that process, they acknowledged the Farm Bill. That’s never happened for the industry before.” He makes a good point. The mere acknowledgement is a victory for the movement, as well as the rule of law. The court’s conclusion, however, seems jarringly inconsistent.

“The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it,” the court asserted. “The Final Rule therefore does not violate the Agricultural Act.”

Wait, what? The statement is contradictory at worst; confusing at best, even to the legal experts with whom we consulted for the article. But as already mentioned, the ruling holds little weight—and it’s being appealed anyway. The debate is far from over.
So, then, is CBD legal or not?

Yes.

Frustrating, right? Try writing the article.

In summary, through the amicus brief submitted by members of Congress, their intention to legalize CBD is clear. All previous ambiguity is gone; there is nothing left for speculation. Yet, the DEA, in their continued battle for control over the cannabis plant have asserted themselves through the Final Rule, and according to Congress, are doing so in direct contradiction to the Farm Bill. Thus far, the courts have only added to the confusion. At the risk of melodrama, it’s a mini-constitutional crisis.

CLICK HERE to read Know the Facts on CBD, Volume 4: Selection and Sourcing

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