4. Denver Law Firm Considering Lawsuit Over DEA's New CBD Classification The Denver firm has represented various hemp and marijuana. Denver Law Firm Considering Lawsuit Over DEA's New CBD Classification. Editor. on December 16, at pm. The Drug Enforcement Administration . The Drug Enforcement Administration DEA could be facing a lawsuit after its announcement earlier this week that it now considers cannabidiol, or CBD.
CBD Firm Considering DEAs Classification Denver Over Lawsuit New Law
This is wrong and illegal. In order to understand any rule you must start with the language of the rule itself. Not all marijuana extracts are part of Schedule I or, indeed, any Schedule at all. This is because the mature stalks of the marijuana plant are specifically exempt from the definition of marijuana under the CSA.
The DEA does not have the authority to make illegal that which Congress has expressly made legal. The point of this blog post is not to give a detailed review of the hemp provisions of the US Farm Bill. For our present purposes I can tell you that in Congress specifically authorized individual states to enact pilot programs for hemp research.
When a State enacts such a law as many have hemp is legal within its borders. By extension, extracts from such a plant are legal, at least in the State in which they were derived. As with the above, the DEA lacks authority to make illegal that which Congress has expressly legalized. Before discussing the third scenario, I want to talk about the first two scenarios in a little more detail.
In both of the above scenarios I said that the DEA lacks authority to make illegal that which Congress has expressly made legal. In the present case the Rule directly clashes with Federal statutes: By attempting to extend the reach of CSA in scenario one and limit the reach of the Farm Bill in scenario 2 the DEA has exceeded its rulemaking authority.
If a rule promulgated by the Executive Branch clashes with a Congressionally enacted statute, including by extending its reach or by limiting its scope, the rule violates the Constitution. When a Congressional statute and an Executive Rule conflict the statute always wins. This is where the treaty language comes into play. Under certain circumstances the Executive Branch may enact laws. However, using this procedure, if that is what the DEA is attempting to do, essentially amounts to emergency rulemaking by the DEA that is an abuse of process.
It is an attempt to circumvent both the Constitution and Congressional restrictions on its authority. DEA , F. The amendments to 21 C. However, now that it is legal to cultivate hemp in the USA at least in states that have enacted hemp laws , Hemp Indus. In other words, marijuana extracts from non-psychoactive industrial hemp containing only trace amounts or less of naturally occurring THC is wholly legal.
This is exactly what the DEA did today. Fortunately, based on the Hemp Indus. Unless and until this provision lapses and is not renewed, the DEA and the DOJ are prohibited from using any Federal funds to enforce any laws or rules that would interfere with hemp or its products that are lawfully cultivated under state law in accordance with the Farm Bill. McIntosh , F. So where does this leave us? My opinion is that the Rule is void.
It clashes with existing Congressionally enacted Federal statutes. The DEA exceeded its Constitutional authority in enacting it. Finally, assuming that the Rule is void, what do we do about it? In the Hemp Indus. In the McIntosh case the defendants asserted the Funding Act provision as a defense to prosecution. What strategy should you employ? He is licensed in North Carolina and Oregon and represents legal cannabis businesses.
This is a rapidly evolving area and I intend to keep posting as we have new developments. So, under your analysis, then only non-THC extracts derived from industrial hemp stalks would be legal? This seems like a sticky situation for the enforcement. Cops catch a consumer with a bottle of extract. Analysis proves it contains CBD. Now the defendant has to prove where it came from?
Thanks for reading and commenting, Russ. Under my analysis only extracts from industrial hemp would are legal. As for your unlucky hypothetical defendant, it is true that the source of the CBD is critical to the defense of his case. Similarly, if it is sourced from the flower of a non-psychoactive hemp plant from abroad then it is also legal. Of course, this is all pure insanity on many levels. The distinction in the law is mostly due to the way that it has evolved.
It should be cleaned up. This fight over CBD is one of many fronts we can expect to face. I look forward to speaking with you. Great info especially for us newbie in this industry far from your place. However, any of actions will give us impact too. I remember meeting and talking with you, Conrad!
Thanks for reading and commenting. You can also read the full response on our website at http: The Federal Farm Bill of carved out an exemption for growing and marketing industrial hemp under the auspices of state-approved pilot research programs, but only one state thus far implemented such a program. Licensed farmers in Kentucky are currently allowed to breed, cultivate, and harvest industrial hemp, formulate products, including CBD-rich oil concentrates, and ship these products across state lines.
Thanks for reading and taking the time to comment on my blog. I do want to note that a number of states have enacted pilot hemp programs pursuant to the Farm Bill. We produce, market and sell a natural herbal supplement. It will be interesting to see how things play out over the coming year. Your remarks are on point. Thank you so much for this breakdown. Great job on tying it all together.
I will be sharing this. I am in the Industry and not worried. Why would anyone care about a simple plant???? If you were in the last stages of your US clinical trials and your stock tanked in October after the reports came back…you might be named GW Pharmaceuticals..
This is a way to help rebound their stock. I know companies that would put out press releases to inflate stock. They are trying to rally by the last quarter of the year. The only person to benefit from such scheduling would be them. I live in Colorado and They only care if you are under age. The Denver Post did a story on it a while back. Outstanding analysis and opinion.
I will be visiting your blog on a regular basis going forward. Compliments to Rod Kight for his analysis of a troubling and confusing action by the DEA — RK not only understands the law but is also well skilled to unravel its complexities and provide a coherent explanation to, we, the concerned — with much gratitude …..
Unless there is something in the works that would allow the drug company to sell the CBD and ban the rest of it-. In a word, yes. Do you feel this ruling could affect regular hemp oil used for cooking?
Cold pressed hemp oil does contain trace amounts of CBD, even hemp oil sold by Walmart. Unfortunately, I have read interviews with DEA spokespersons who contend that the new rule covers hemp oil used for cooking. He is a tripod with hip and elbow displasia. This has me kinda worried. This has been the best therapy that we have tried.
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Denver Law Firm Considers Lawsuit Over New DEA CBD Classification argues Robert Hoban, managing partner at the Hoban Law Group. CBD-rich hemp oil is used in many applications, including infused to get CBD- rich oils removed from the DEA's Schedule 1 classification as a dangerous drug. Administration from considering their products as dangerous drugs. Represented by Denver-based cannabis law firm Hoban Law Group, the. What I don't get is how Epidiolex, a plant-derived CBD-based drug, can have Orphan Drug Approval, yet the DEA can classify it as something.