The CBD oil business has exploded in the last couple of years. I was at an integrative medical conference in New York City back in February and I asked a few CBD oil vendors whether their product was legal. They all assured me that their product was legal, some claiming that it was legal because it contained less than 0.3 percent THC, while others said it was legal because it contained no THC. That didn’t sound right to me. I have a friend who distributes CBD oil and I recall looking into the legality a year or two ago, and I recall the feds did something or other which got the CBD oil and hemp industry up in-arms, and I also recalled that two California counties shut down prominent CBD oil manufacturers. At the conference several of my practitioner friends asked my opinion about using it in their practices and/or distributing it. So I decided to take a harder look at it.
Note that there is some biological confusion in the regulatory field because both legal hemp and illegal marijuana carry the same plant nomenclature, (Cannabis sativa L.) As I understand it, the difference between the two is a result of breeding and the use the male, non-flowering plants (for hemp) and female flowering plants for marijuana.
The DEA (drug enforcement agency) regulates narcotic drugs and other dangerous or addictive drugs. The primary statute is the Controlled Substances Act (“CSA”). The CSA and its implementing regulations create five categories or schedules of drugs, roughly corresponding to the level of addiction potential. Drugs available for prescription are listed in schedules 2 through 5. (the statute uses roman numeral designations) Schedule 1 is reserved for drugs with supposedly no medical value whatsoever, like heroin, LSD and marijuana. Schedule 1 drugs are illegal to sell or use, at least under federal law.
As you know, many states have laws on marijuana and some also specifically regulate CBD oil. However, technically, federal law preempts state law on these drug issues, though there have been few or no recent federal enforcement actions challenging state marijuana laws.
So what is Marijuana under the CSA?
According to Section 802 (16) of the CSA:
“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 resin.
Such term does 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.”
Marihuana is a schedule 1 drug. However, if the cannabis product is made from the mature stalks, fiber, oil or cake made the seeds of such plant … then it’s not marihuana and is not an illegal schedule 1 drug.
The DEA has issued several clarifications basically saying that CBD oil which is made from the flowering and other parts of the Cannabis sativa L plant is included in the definition of Marihuana, so it is a schedule 1 drug.
So what’s all this talk about .3% or no THC?
Some countries use the amount of THC to distinguish between legal hemp and illegal marijuana.
In the U.S., the .03 percent THC cut-off is only used in a recent farm bill for hemp. The bill basically defines hemp as a cannabis product which has less than .3% THC.
However, the bill and its hemp definition doesn’t overrule or modify the definition of marihuana in the CSA, and the bill only applies to agriculture research into what is called hemp in the bill.
Here is the law.
So anyone who is telling you that their CBD oil is legal because it contains less than .3% THC or no THC, is confused or misleading you.
As shown above, it’s not how much THC is in the product, it’s the source of the product; i.e. the part of the plant used which determines whether the product is illegal marijuana or a legal hemp based product.
What about some federal lawsuit by the Hemp Association? Didn’t that make it legal?
Short answer no. The Hemp Association, filed a federal lawsuit last year, Hemp Industries Association, et al, vs DEA, et al, challenging some abstruse classification issues creating a marijuana extract classification for international reporting purposes. The Hemp group claimed that it effected a reclassification of things like CBD oil from legal to illegal. The DEA argued that CBD oil has always been illegal, as evidenced by its recent clarifications to the public. I read the briefs and even listened to the oral arguments. I thought the case was a loser. The 9th Circuit recently denied the Hemp group’s petition.
So federally it’s simple, isn’t it?
If the product you’re selling or using is coming from the stalks, oils . . . it’s legal, otherwise it’s not. At least according to the DEA and under federal law, which the federal government believes supercedes or preempts state law to the contrary.
What can change things?
The good news is that the CBD oil proponents haven’t been sitting on their thumbs. In late April 2018, a new hemp farming bill was introduced in Congress. Here it is:
It would do what the old farm bill didn’t actually do, namely set the threshold of legality of cannabis products at the .3% of THC. Meaning, irrespective of the part of the plant being used, if the product has less than .3% THC, it’s not a schedule 1 drug and is legal.
We’ll see how far the bill goes.
What else is in the horizon?
Pres. Trump is making noises about legalizing marijuana. That might make the farm bill moot, since if marijuana isn’t a schedule 1 drug, well that would make a lot of people happy and should resolve the CBD oil legal problem.
(Complicating things is the fact that CDB oil is illegal in some states, so you’ve got the whole federal vs. state thing in reverse if the feds make marijuana legal.)
So what does that all mean to the practitioners and resellers of CBD oil?
Good question; see the sequel to this post anon.
Rick Jaffe, Esq.