CBD Legality

In December 2018, the US House passed the Farm Act Bill of 2018 which legalized the cannabidiol (CBD) that is derived from hemp and has only 0.3% THC or less. The hemp was then removed under the Controlled Substances Act (CSA).

This bill was integral to the growth of the hemp industry. But it was not an easy ride to get to this point. It has been a long, bumpy road for the legalization of hemp-driven CBD products and for the industry, as a whole.

The Timeline of CBD Legalization

In October 2001, the DEA (Drug Enforcement Agency) banned any industrial hemp products, including hemp seed, oil, or food products with any hemp-derivatives and any trace amount of THC. However, the DEA stated no compelling reason or conducted the required public notice and comment period. This ruling resulted in a lawsuit between the DEA and the Hemp Industries Association (HIA). In February of 2004, the Ninth Circuit Court of Appeals issued a unanimous decision in favor of the HIA.

CBD LEGALIZATION


In December 2016, the DEA published a new drug code that contradicted the Farm Bill Act of 2014. This again resulted in another lawsuit between the DEA and the HIA. In April of 2018, the Ninth Circuit Court released a short decision in favor of the DEA. However, this decision did not classify hemp-derived cannabidiol (CBD) as a controlled substance, nor did it signify that the popular hemp product was federally illegal. The ruling had no legal or practical impact on hemp or hemp products because of the following reasons:

  • The Ninth Circuit declared the decision has no precedential value – meaning it is not binding on other courts or future judicial decisions. The disposition was even deemed by the court as “not appropriate for publication,” further limiting its value.

  • It was decided on procedural grounds, not on any matter of substance.

  • The Ninth Circuit ruled that the HIA had failed to meet a widely-accepted principle of administrative law: Before you challenge a federal agency in court, you must first exhaust all of your administrative remedies. But in this case, the HIA did not participate in the DEA’s earlier public notice and comment period.

  • The Ninth Circuit makes clear that the DEA’s rule does not apply to hemp or hemp-derived products developed under state pilot programs authorized by the 2014 Farm Bill. The Court concisely states that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” Accordingly, other hemp products exempted from the CSA – such as non- psychoactive hemp products that were the subject of the 2004 Ninth Circuit decision – should also be exempted from the DEA Rule.

  • To add, the DEA admitted during the litigation process that the marijuana extract rule did not apply to hemp. As stated in a key legal brief, “It (the Rule) simply requires that persons handling a subset of the materials defined as ‘marijuana’ write a different identification number on their administrative paperwork.”

Why CBD is not like any other addictive drug

Let’s go back to CSA. The CSA is the U.S. drug policy that regulates the manufacture, importation, possession, and use and distribution of specified chemicals and substances. Any addition, deletion, or change of schedule of a medicine or substance can only be requested by the DEA, the Department of Health and Human Services (HHS), the Food and Drug Administration (FDA), or by any other party via petition to the DEA.

To be classified as Schedule I, a substance must meet the following three requirements:

  • The drug or other substance has a high potential for abuse.
  • The drug or other substance has no currently accepted medical use in treatment in the United States.
  • There is lack of accepted safety for use of the drug or other substance under medical supervision
ScheduleClassification CriteriaExamples
C-ISubstances have a high potential for
abuse, have no currently accepted
medical use in treatment in the U.S.,
and have a lack of accepted safety for
use under medical supervision
Ecstasy (MDMA), heroin, LSD, marijuana, methaqualone, peyote
C-IISubstances have a high potential for
abuse, which may lead to severe
psychological or physical dependence,
and have a currently accepted medical
use (with severe restrictions)
Hydromorphone, methadone, meperidine, oxycodone, fentanyl, 
morphine, opium, codeine, cocaine, amphetamine, methamphetamine, methylphenidate
C-IIIHave less potential for abuse than
substances in C-I or C-II, and abuse
may lead to moderate or low physical
dependence or high psychological
dependence
Hydrocodone/ acetaminophen (Vicodin), Tylenol with Codeine,
buprenorphine, benzphetamine, phendimetrazine, ketamine,
anabolic steroids (Depo- Testosterone)
C-IVHave a low potential for abuse relative
to substances in C-III
Alprazolam, carisoprodol, clonazepam, clorazepate, diazepam, lorazepam, midazolam, temazepam, triazolam
C-VHave a low potential for abuse relative
to substances listed in C-IV and consist
primarily of preparations containing
limited quantities of certain narcotics
Robitussin AC, Phenergan with Codeine, ezogabine

A high potential for abuse indicates a habit-forming behavior, followed by a sharp physical and mental health decline. But, CBD is neither addictive nor does it have the potential for abuse. In fact, some studies show that CBD is an effective solution for addiction. Basing on this chart alone, CBD does not even classify as Schedule I.

Second, Americans are currently using CBD as a means of easing anxiety, stress, pain, and, most notably, epileptic seizures in children. Third, although much of the research surrounding CBD is anecdotal (due predominantly to prohibition), CBD is known as non- psychoactive – meaning the user will not experience intoxication regardless of the dosage. We also know there has never been a single reported death from ingesting or inhaling cannabis. As quoted by DEA Judge Francis Young:

“At present, it is estimated that marijuana’s LD-50 is around 1:20,000 or 1:40,000. In layman terms, this means that to induce death, a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. NIDA-supplied marijuana cigarettes weigh approximately 0.9g. A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.”