Is CBD Oil Legal? It’s Still Not Clear

With Epidiolex Approved, It’s Still Not Clear

The legal landscape around CBD (cannabidiol) is unsettled and uncertain, and it became even more confusing with now ’s FDA approval of this CBD-based medication Epidiolex.

Epidiolex, a “pure plant-derived CBD” extract developed by the UK-based GW Pharmaceuticals, has been shown to dramatically reduce seizures in large populations of children with epileptic syndromes. (For a clear explanation of what CBD is and how it affects the brain, see Leafly’s guide to cannabidiol by Dr. Dustin Sulak.)

‘Anybody out there that says the law on CBD is certain one way or another is lying.’

The FDA’s approval of Epidiolex could mean quite large changes for CBD nationally.

“The FDA is the thing in America that approves medicines. Not DEA, we’re cops. We depend on them to tell us if something’s a medicine,” Barbara Carreno, the DEA press officer, told me earlier this month during an interview concerning the legal status of CBD. “Should they on June 27 announce that they’re approving Epidiolex, absolutely we’ll go to a different schedule. ”

As it happens, the FDA announced it was approving Epidiolex on June 25, two days earlier than Carreno predicted.

The FDA’s decision on Epidiolex could indicate the FDA would largely take over regulation of the cannabidiol molecule. That could mean things like prescription CBD available at pharmacies or even over-the-counter CBD drugs.

As of right now, though, now, nothing has changed from the legal status of CBD outside of Epidiolex.

With demand for CBD booming, many companies are moving ahead and delivering products in an uncertain legal landscape.

I know this since I stumbled into the briar patch a month, when I wrote a story under the headline, “Court Rejects Challenge to DEA Rule, Leaving CBD Federally Illegal. ”

The 9th US Circuit Court of Appeals had just upheld a DEA rule defining any extract of this Cannabis sativa plant as a Schedule I controlled substance if it contains one or more cannabinoids. That definition that seemed to include CBD extract, and my story reported it like that.

The backlash began almost immediately. America’s hemp industry, which has been fighting for over a decade to expand the legality of industrial hemp and hemp-derived products, balked in our headline. “This judgment does NOT leave CBD federally prohibited,” one PR person wrote in an emailed request for an “urgent correction. ”

Meanwhile, the US Hemp Roundtable, an industry group containing some of the bigger names in industrial plants, issued a statement saying the decision “shouldn’t be read as a substantive setback” for the industry.

“Unlike some early reports, this judgment does NOT classify hemp-derived cannabidiol (CBD) as a controlled substance, nor does it signify that the favorite hemp product is federally illegal,” composed Jonathan Miller, the group’s general counsel. “In summary, the DEA’s ‘marijuana extract rule’ doesn’t apply to hemp or derivative products such as hemp-derived CBD. Period. ”

Two Clashing Views

On one hand, the 9th Circuit ruling seemed to say that any extract comprising a cannabinoid qualifies as a controlled substance. On the other hand, here was the hemp industry, including the very people who challenged the DEA extract rule in the first place, claiming it wasn’t affected.

Wisely, my editor suggested I revisit the issue. CBD as become wildly popular, but consumers and manufacturers continue hearing mixed messagesnot to mention sporadically having their CBD products captured by law enforcement. I’ve spent the past few weeks trying to locate clarity on cannabidiol.

I’m afraid there’s not a lot of it.

A Quiet Turf War

As America reconsiders its relationship with the cannabis plant, a war was raging over industrial hemp. With every new conflict, boundaries are erased and drawn again–and not always obviously. The result is a complex legal landscape that offers plenty of space for opportunistic interpretation, and has left many scratching their heads.

‘It isn’t legal just because you want it to be and since you say it is.’

One of the first people I talked to was Jonathan Miller, the hemp industry attorney who’d written that the DEA’s extract rule “doesn’t apply to hemp or derivative products such as hemp-derived CBD. Period. ”

Things seemed a lot less clear-cut after we were on the telephone. When I asked him about the legality of hemp-derived CBD extract, he explained that there are various circumstances under which hemp could be generated and distributed, all which might yield a different legal result.

“Anybody out there that says the law is definite one way or another is lying,” he told me.

I pointed out that the statement he wrote for the US Hemp Roundtable sounded awfully definite. How, I asked, would he be certain hemp-derived CBD is lawful?

“We don’t say that this decision declares CBD legal. What we’re saying is that this decision does not declare CBD illegal. ”

He’s correct; there is a difference. However, if that was the lawful truth behind the hemp business ’s sweeping statement, how much else out there was assembled on equivocation?

It’s not tough to find claims from CBD manufacturers–or even from reputable books –that CBD extract is “legal in all 50 states. ” That’s not true, as even the hemp-industry attorneys I spoke with acknowledged. But where did these claims come from?

John Hudak is a senior fellow at the Brookings Institute and has written widely on cannabis law and policy. He chalked up the “legal in all 50 states” claims to simple misinformation. Someone tells them that this is legal,” he said, “and it becomes a telephone game of it being legal. ”

They ’re saying things that are false and incorrect,” he added. “This idea that it’s legal in all 50 states, that it’s legal to ship across state lines… It’s not legal just because you want it to be and since you say it is. ”

In a February 2017 blog post–that he said still ranks among the institute’s hottest –Hudak wrote that CBD “is prohibited and always was. ”

I asked him if anything occurred during the past year to altered that.

“The latest guidance from the DEA does change this a little bit,” he responded, speaking to some rule clarification issued by the bureau. “It’s not changing it as much as the industry is suggestingit’s not changing as much as advocates say it is, but what it’s saying is that there is a really specific subset of products where CBD can be extracted. ”

At this point, things get even more confusing. In the eyes of a botanist, Cannabis sativa is just one plant. In the eyes of federal officials, however, it’s at least two. Legally speaking, industrial hemp is described as a Cannabis sativa plant that contains less than 0.3% THC. Any more THC and it’s categorized as bud .

Pot, famously, is a Schedule I controlled substance, more closely regulated than opium or cocaine.

In Hudak’s view, CBD extract made from hemp that complies with a state’s hemp pilot program as approved under the 2014 farm bill would indeed be federally legal. “If all of these details, all those provisions are satisfied, then yes, the CBD is lawful,” he said.

Is Your CBD Federally Legal? Follow Leafly’s Flow Chart

Click on picture to expand. (Illustration by Elysse Feigenblatt/Leafly)

Find the Source

Some from the hemp industry call this the “source theory. ” Its logic is appealingly simple: CBD extract is lawful under federal law if the Cannabis sativa plant it’s derived from is legal. “It’s lawful if the source is lawful,” explained Rob Kight, a hemp industry attorney based in Kentucky.

The logic of’source theory’ is simple: CBD extract is lawful under federal law if the plant it’s derived from is legal.

Hudak in Brookings agrees with the so-called source theory–with a caveat. Pointing to provisions in the farm bill that seem to restrict hemp cultivation to “institutions of higher education and State departments of agriculture,” he explained the law appears to put limitations on how hemp can be used commercially.

Kight, however, took issue with that interpretation. The farm bill defines a pilot program as one “to study the growth, cultivation, or promotion of industrial hemp,” and while Kight confessed the law “doesn’t provide a lot of indication” as to precisely what this means, he contended that it provides more leeway than you might think. Commercial sales, for example, could actually be regarded as a kind of research into hemp’s economic viability.

As for the provision about limiting cultivation to institutions of higher learning or state departments of agriculture, he added, “There’s nothing unusual about a state licensing private actors. ”

As the war over CBD extract has unfolded, the law enforcement agency has engaged in its own equivocation, further complicating the conversation about what’s lawful and what’s not.

“The DEA doesn’t like CBD and cannabis extracts,” Kight, the Kentucky hemp lawyer said, “also it doesn’t want to admit circumstances under which it is lawful. ”

When the DEA embraced its marijuana extract rule in 2016, many saw the move as a indication of the bureau ’s antipathy toward the plant and its pharmacological uses. The DEA itself, however, downplayed the rule as merely an administrative change, meant to deliver US drug classifications more closely in line with international treaties.

However, similar to how the hemp industry has occasionally exaggerated the legal protections for hemp-derived CBD, the DEA’s clarification struck some more as an effort to gain ground.

In theory, said Hudak in Brookings, “the DEA clarified this. But in reality, it set up what are a few of the most restrictive rules about when CBD can be lawful. ”

That has frustrated attorneys who represent the hemp industry. The DEA has a duty to clearly state how it sees these issues, Kight said, but rather the agency occasionally appears to resort to obfuscation.

“What [the DEA] should do is acknowledging what the law is and saying, ‘This is how we’re going to apply it,’” the Kentucky lawyer said. “Rather, it’s begrudgingly moving as it has to and it’s continuing to muddy the waters. ”

“The main difficulty is that this confusion, lack of schooling, and complicated system of regulations and rules that overlap,” he added. “When you add the rest of the layers and the marijuana extract rule … it just becomes a morass. No non-expert in the field could be expected to understand it. ”

So I called the DEA.

Getting the DEA on the Record

When I talked to Barbara Carreno, a DEA press officer, she confessed that the legality of CBD was a challenging subject. “There’s enormous confusion out there, and it’s not surprising,” she told me.

The DEA says products like rope and fiber from Farm Bill-related hemp are lawful. But CBD isn’t.

I asked whether there were any circumstances under which the DEA would agree that hemp-derived CBD would be lawful. If hemp were grown legally under a state pilot program, by way of example, and if that hemp were then processed to CBD infusion –the source theory in action–would the DEA believe that extract to be legal?

No, Carreno told me.

“CBD is separate from hemp,” she said. “The farm bill is all about industrial hemp products. It’s a pilot program for growing marijuana with which to make industrial hemp products–the ropes, shampoos, things like this. ”

Hemp fiber, for example, is used to produce things like paper and textiles. Sterilized hemp seed can be eaten or turned into hemp milk, making for a yummy latte. “The definition of marijuana exempts those hemp goods,” Correno said, “whereas the definition of marijuana within the CSA would comprise CBD as Schedule I because it’s made from seeds that are viable. ”

But…That’s Not So

It’s worth pointing out that the final portion of the statement–that CBD comes from “viable seeds” of the Cannabis sativa plant–simply isn’t accurate. CBD extract is typically made from all areas of the hemp plant–chiefly its leaves, buds, and stalks–and doesn’t need using viable plant seeds at all.

I began to push back, but Carreno doubled down. “You have the CSA saying that; it’s by definition in the CSA,” she said. “CBD is made from viable seeds, which isn’t hemp. ”

Carreno was the only DEA representative I talked to for this story, so I don’t know if her statements reflect the bureau ’s perspectives. The DEA’s clarifier actually says something different. However, Carreno’s response underscores the ongoing confusion about hemp-derived CBD, even among people who are supposed to be setting the record straight–to me, a person who’s supposed to be setting the record straight.

Enforcement and Enforceability

Inside were two 100-milligram bottles of hemp-derived CBD extract, sent as an unsolicited sample by a California manufacturer.

The juxtaposition was striking–and emblematic of the current market for CBD. Even as attorneys and federal agencies face off over whether this stuff is legal, enterprising businesses are already selling it online and at stores around the country.

Amid a confounding legal landscape and a booming market for CBD, many companies have opted to forge ahead and push the limit of what’s legal, whether from ignorance, principle, or calculated risk.

Unfortunately, law enforcement is often just as confused about the law as anyone. Especially at the local level, attorneys for the hemp industry said, legal obstacles often stem from misinformation or misunderstanding. “Everything you see, across the country, are neighborhood or county-level arrests or seizures, and that has to do primarily with a lack of schooling,” said Kight. ”

What he means by this, he explained, is that occasionally CBD extract believed legal under the source theory is flagged as illegal by police and captured. In other instances, regional postmasters have returned shipments as undeliverable.

The DEA’s extract rule has also reared its head in the alcohol sector, where a San Francisco brewery was recently told to cease production of a CBD-infused beer following federal alcohol regulators deferred to the DEA on if the CBD oil used was legal. Unsurprisingly, the DEA said it was not.

“To enter this business, you will need to understand it’s a risk,” Miller, the Hemp Roundtable attorney told me. “There’s a danger of law enforcement. That’s just the nature of the beast. ”

Is it possible to question those decisions? Possibly, said Kight, but it’s a costly legal fight that might not be worth the effort.

“What is someone to do? “There are ways and mechanism to challenge this, but it’s quite convoluted. You’re not just challenging one bureau. ” Because a given arm of the federal government often internally defers to other agencies’ experience on questions of health or drugs, legal challenges can become a complex knot of arguing against self-reinforcing rules.

Kight said he advises clients to “walk that narrow path so it’s legal,” such as by processing only hemp grown in line with state hemp pilot projects. He also encourages clients to keep records in their products so that they have an easier time arguing legality if ever called into question.

Be Prepared to Display It’s Legal

At Brookings, Hudak thinks that’s a good idea. Though there are certain provisions in congressional spending bills that limit prosecution against state-legal hemp business, law enforcement’s decision to grab goods or bring criminal charges is a matter of discretion, a human decision. Given the condition of the current market, Hudak said, you will need to be prepared to demonstrate why you think your product is lawful.

If a producer finds itself in court defending its product, “the weight is going to be on the producer to demonstrate that the CBD was created legally,” he said. “The benefit of this doubt is most likely going to be awarded to law enforcement by the courts. ”

To put it differently, don’t assume that just because you’ve read somewhere that CBD is “legal in all 50 states” that the argument will carry much water .

Enforcement Is Unusual

Sure, CBD extract–or products described as such–can be found online, but the fact that some products might be lawful certainly doesn’t mean all of them are. When I asked Miller how much of this hemp-derived CBD extract on the US market he thought might be lawful, he responded, “I don’t know the percentages. ”

Nor does it mean buyers are necessarily safe from authorities. True, enforcement might be uncommon, but penalties–not to mention going through the legal process itself–can be daunting.

“It’s quite tough to navigate because there’s so much misinformation out there,” said Hudak in Brookings. “When you enter stuff that’s bought online, that’s shipped across state lines, you’re talking about possibly pretty serious crimes. It’s all pretty much a gray area. ”

Where to Buy CBD Extract

The safest way to get CBD extract for an increasing number of Americans would be to not worry about whether or not it’s federally legal. In states with strong medical cannabis programs, CBD extracts are available for patients with a huge array of medical conditions. Likewise, in adult-use states like California, CBD goods are available to adults over 21 alongside products with THC.

“In a dispensary in Seattle, no one is lying to their customers and saying, ‘This joint I just sold you is legal in all 50 states,’” Hudak said. The fact the transaction is prohibited under federal law is understood. However, it exists at least in a place of some certainty, with federal prosecutors in most legal states acknowledging that going after law-abiding cannabis consumers isn’t a top priority.

In the context of a state medical marijuana program, legal protections are even more powerful. The Rohrabacher-Blumenauer amendment, recently revived by Congress, bars the Justice Department from using any federal funds to interfere with state-legal medical cannabis. These days, that’s about as clear-cut legal as you’re likely to find.

Meanwhile, on Store Shelves…

Regardless of the legal morass, plenty of additional hemp-derived extracts that have been carefully made are available online and on store shelves. Here in Washington, CBD goods are sold at beauty salons and vitamin stores. My morning coffee shop provides CBD-infused tea. In Los Angeles, trendy juice shops will toss in a shot of CBD oil for a slightly unreasonable fee.

According to both personal and anecdotal experience, a number of these products are wonderful. That’s largely a reflection of the regulatory and legal confusion in now ’s economy.

Change could also come from hemp legislation introduced by US Sen. Mitch McConnell of Kentucky, who recently became a champion of his state’s industry, which dates back to 1775. Hemp industry attorneys say the bill would expand the range of the source theory considerably. While a vast majority of hemp-derived CBD on the market might not yet be lawful, “it will be soon, especially if the McConnell bill passes,” Miller told me.

You might’ve missed it among the headlines, but the war over cannabidiol has been steadily simmering in the background. You’re about to hear a lot more about CBD. And if we’re lucky, maybe someday the laws will catch up.

Released at Mon, 25 Jun 2018 18:59:29 +0000

Posted in: News

Comments are closed.