Posted on

dea and cbd oil

On August 20, 2020, the Drug Enforcement Administration (DEA) issued an interim rule on hemp, hemp-derived CBD (Hemp CBD) and other hemp-derived cannabinoids.

The 2018 Farm Bill defines hemp as the plant Cannabis Sativa L. with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis. The 2018 Farm Bill also defines hemp to include all derivatives, extracts, and cannabinoids of hemp. It is undeniable that the hemp plant and hemp derivatives, extracts, and cannabinoids are no longer controlled substances. It would then logically follow that it is legal to process the hemp plant into legal derivatives, extracts, and cannabinoids. The DEA’s interim rule however, does not take that into account.

[The 2018 Farm Bill limits] the definition of marihuana to only include cannabis or cannabis-derived material that contain more than 0.3% delta-9-tetrahydrocannabinol (also known as Δ 9 -THC) on a dry weight basis. Thus, to fall within the current CSA definition of marihuana, cannabis and cannabis-derived material must both fall within the pre-[2018 Farm Bill] CSA definition of marihuana and contain more than 0.3 percent Δ 9 -THC on a dry weight basis. Pursuant to the [2018 Farm Bill], unless specifically controlled elsewhere under the CSA, any material previously controlled under Controlled Substance Code Number 7360 (marihuana) or under Controlled Substance Code Number 7350 (marihuana extract), that contains 0.3% or less of Δ 9 -THC on a dry weight basis—i.e., “hemp” as that term defined under the [2018 Farm Bill]—is not controlled. Conversely, any such material that contains greater than 0.3% of Δ 9 -THC on a dry weight basis remains controlled in schedule I.

According to the DEA, “[t]he interim final rule merely conforms DEA’s regulations to the statutory amendments to the [Controlled Substances Act (CSA)] that have already taken effect, and it does not add additional requirements to the regulations.”

But here is the issue: the 2018 Farm Bill does account for hemp derivatives, extracts, and cannabinoids. It follows that the legislative intent was not to make processing hemp into extracts, derivatives, and cannabinoids a violation of the CSA. The DEA has either unintentionally or deliberately failed to account for this nuance and it could have a major chilling effect on the Hemp CBD industry or the fast-growing delta-8 THC market. I’ll let you decide whether the DEA is ignorant or nefarious, but I believe that this is an intentional move by the DEA to maintain its authority over cannabis. To be fair I also think the DEA should be disbanded so maybe I am biased.

The new drug code is a subset of what has always been included in the CSA definition of marijuana. By creating a new drug code for marijuana extract, the Final Rule divides into more descriptive pieces the materials, compounds, mixtures, and preparations that fall within the CSA definition of marijuana. Both drug code 7360 (marijuana) and new drug code 7350 (marijuana extract) are limited to that which falls within the CSA definition of marijuana.

As explained in the Final Rule, the creation of this new drug code was primarily intended to give DEA more precise accounting to assist the agency in carrying out its obligations to provide certain reports required by U.S. treaty obligations. Because the Final Rule did not add any substance to the schedules that was not already controlled, and did not change the schedule of any substance, it was not a scheduling action under 21 U.S.C. §§ 811 and 812.

Note regarding this rule – In light of questions that the Drug Enforcement Administration has received from members of the public following the publication of the Final Rule establishing a new Controlled Substance Code Number (drug code) for marijuana extract, DEA makes the following clarification:

Clarification of the New Drug Code (7350) for Marijuana Extract

Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations. As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves. 2 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, except for trace amounts (typically, only parts per million) 3 that may be found where small quantities of resin adhere to the surface of seeds and mature stalk. 4 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. The industrial processes used to clean cannabis seeds and produce seed oil would likely further diminish any trace amounts of cannabinoids that end up in the finished product. However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids. 5