The U.S. Drug Enforcement Administration (“DEA”) stated in an internal directive last week that it lacks authority over hemp products that come from the parts of the cannabis plant exempted by the federal Controlled Substances Act (“CSA”).
The directive acknowledges that hemp products containing “materials that are made from the cannabis plant and which fall outside the [CSA] definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA” and, thus, hemp products “may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA.” However, DEA regulates hemp products containing viable seeds, flowers, or extract from flowers (i.e. CBD) as schedule I drugs under the CSA.
According to DEA, whether a hemp product is within the scope of the CSA depends on the part of the plant from which it was derived. If a hemp product contains or is derived from the flowers of the hemp plant, as CBD and other hemp extracts often are, then DEA still considers the product to be illegal.
The DEA said it decided to issue the directive “[i]n response to various inquiries,” and there have been questions about the agency’s seemingly contradictory positions regarding the legality of hemp products. The legal confusion surrounding DEA’s jurisdiction over hemp goes back to a 2004 Ninth Circuit Court of Appeals opinion which held that the DEA had overreached its authority with respect to hemp products. Even though hemp may contain trace amounts of THC, hemp products are not included in the CSA—and, therefore, the agency is not permitted to regulate the industrial crop, the court ruled. The DEA acknowledged its lack of control over such products in its directive.
While this is a major acknowledgement from DEA, without a clear legislative fix from Congress, questions remain regarding hemp regulation, especially with regard to CBD. DEA has not changed its position regarding CBD legality, and CBD remains a potential enforcement area for the agency. Thus, because DEA has not shifted its position vis-à-vis CBD, the production and distribution of CBD products remain risky. Understanding and mitigating these risks is vital to entry into the growing CBD market. McAllister Garfield is here to advise your business on the risks associated with CBD, as well as help to mitigate your exposure to said risks. If you have any questions, or would like assistance with building your CBD business, don’t hesitate to contact the Firm.
Garrett L. Davey, Esq.