Is Hemp Derived CBD Illegal In The USA?

Industrial hemp - cannabidiol
Image: Evelyn Simak, CC BY-SA 2.0, Link

It appears the U.S. Drug Enforcement Administration believes cannabidiol derived from hemp is illegal at a federal level – and has been for some.

The clarification comes after months of uncertainty triggered by the DEA’s publishing of a Final Rule on the coding of marijuana extracts in December last year.

Back then, the Hemp Industries Association felt the ruling did not change the status of CBD, but then in January announced it would be seeking to block the DEA’s Final Rule. Hoban Law Group also filed a petition, stating it was an attempt by the DEA to control a lawful substance.

But was/is cannabidiol actually a lawful substance before this?

In a clarification published last week, the DEA seems to be indicating that it isn’t:

“As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves,” it says.

(CSA: Controlled Substances Act).

“According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts.”

This conflicts with the claim from some CBD vendors that their cannabidiol is extracted from parts of the industrial hemp plant such as stems.

To summarise, while hemp-derived cannabidiol hasn’t been made illegal in the Final Rule, it appears CBD always was in the DEA’s view; even though cannabidiol isn’t specifically mentioned on the CSA list.

As crazy as it all is, this could put vendors and buyers alike at risk of prosecution.

Of course, like anything else related to cannabis law, it’s not as cut and dried as this – and no doubt the wrangling and interpretations have some way to go before real clarity is achieved. Both the HIA and Hoban Law Group appear to have plenty of ammo to work with. There’s also the issue of state laws overriding federal laws (within the relevant state).

The other important point is if the DEA is indeed correct, whether it will pursue it. Given cannabidiol’s good safety profile, lack of psychotropic effect and the benefits it is believed to have brought many people; attempting such a law could backfire in a very big way. The genie is now well out of the bottle and attempts to stuff it back in will create a huge drain on resources – and to what end?

An example of wasted resources is the DEA’s cannabis eradication program that predominantly destroyed “ditch weed” – wild plants descended from industrial hemp with no recreational value.

It’s not as though the DEA doesn’t have much, much bigger  and much nastier fish to fry. But still, it leaves a dark cloud lingering over those who choose to sell and consume CBD.