The curious legal status of CBD

Contrary to wildly popular belief, any way one slices it, all cannabinoids are illegal on the federal level. That includes cannabidiol (CBD). Yes, despite the fact that they are being sold on Amazon.com; and, yes, despite the fact that a multi-level marketing company known as Kannaway has signed up thousands of CBD distributors from all over the United States while shouting from the rooftops that “CBD is 100% legal in all 50 states.”

The definition of “marihuana” in the federal Controlled Substances Act of 1970 goes entirely out of its way to emphasize the resin of the cannabis plant species for the deliberate purpose of capturing all of the properties of the species’ resin extracts. Resin is mentioned three separate times within the two-sentence definition, twice as an inclusion and once as an exclusion to the exception.

The act states: “The term ‘marihuana’ means all parts of the plant Cannabis sativa L.[sic], 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.”

Fred Gardner, who is the co-founder of Project CBD and the publisher of O’Shaughnessy’s, a journal devoted to cannabis in clinical practice, reached out to the Food and Drug Administration as to CBD’s legal status. He received this short and sweet reply from Dr. Lisa Kubaska, spokeswomen for the FDA’s Center for Drug Evaluation and Research: “CBD meets the definition of Schedule I under the Controlled Substances Act. The DEA is the regulatory agency.”

Hairs were split in the 9th Circuit Court of Appeals in the beginning of the century on what was meant and intended by the specificity of “resin” in the Controlled Substance Act (CSA) definition. These are fascinating emergency motions collectively brought – and successfully won – by the Hemp Industries Association (HIA), Dr. Bronner’s Magic Soaps, Nutiva and others to defend hemp seed oil and hemp seed food and products from a preposterous interpretive rule issued by the DEA on Oct. 9, 2001 titled, “Interpretation and Clarification of Listing of ‘Tetrahydrocannabinols’ in Schedule I; Exemption from Control of Certain Industrial Products and Materials Derived from the Cannabis Plant; Final Rules and Proposed Rule” that suddenly declared hemp seed oil and hemp seed food and products to be controlled substances at the federal level.

The final 2004 opinion concludes: “… Congress was aware of the presence of trace amounts of psychoactive agents (later identified as THC) in the resin of non-psychoactive hemp when it passed the 1937 ‘Marihuana Tax Act,’ and when it adopted the Tax Act marijuana definition in the CSA. As a result, when Congress excluded from the definition of marijuana ‘mature stalks of such plant, fiber . . . , [and] oil or cake made from the seeds,’ it also made an exception to the exception, and included ‘resin extracted from’ the excepted parts of the plant in the definition of marijuana, despite the stalks and seeds exception.” (From HIA, et al. v. Drug Enforcement Administration, et al. (9^th Cir. 2004) For extensive information and documents concerning hemp seed product lawsuits, go to the Vote Hemp website and select the Information tab.)

Some of the people drinking the “CBD-is-legal-in-all-50-states” Kool-Aid protest that the above-referenced 9th Circuit opinion does not apply to non-psychoactive cannabinoids. They are incorrect.

Neither the DEA’s Oct. 9, 2001 interpretation, nor rulings issued by the Court of Appeals, specifically addressed the legal status of CBD extracted from industrial hemp for medical purposes or any other purpose. The legal actions taken by the HIA and its most affected business members were in urgent response to then-new and proposed DEA regulations that threatened hemp seeds and hemp seed food and products — not hemp-derived cannabinoids.

While their actions did not change the fact that commercial industrial hemp cultivation remains federally unlawful, their actions did protect the legal import and domestic sale of hemp seed oil and hemp seed food and products as long as the product is derived from the seed or stalk of the industrial hemp plant (not from the flowers or leaves); and the THC content is less than 0.3 percent. As it stands today, the DEA and the federal government consider all cannabinoids to be tetrahydrocannabinols.

Had the DEA’s Oct. 9, 2001 interpretive rule addressed and attacked industrial hemp-derived cannabinoids and CBD, the HIA may very well have responded just as vigorously. In fact, during the CBD Panel presentation at the recent 2014 HIA National Conference in Washington, D.C. in September, it was learned that the DEA had just commandeered and was withholding an international import shipment of CBD in powder form that was reportedly derived from the industrial hemp cultivar. The HIA is assisting in that legal battle against the DEA.

There are those who completely miss the mark when it comes to the HIA’s strong support of CBD, primarily as a result of a lack of understanding as to why the association properly holds the position that it is a deceptive practice to use the term “hemp oil” to describe non-hemp seed oil products.

The HIA and its business members put forth tremendous efforts and more than $200,000 in legal fees and costs in the beginning of the century to protect the rights of U.S. citizens and businesses to legally import, manufacture, use, buy and sell “hemp oil” — that is, oil pressed from the hemp seed.

Erroneously deducing that the DEA has a standing policy of federally excusing the manufacture and sale of resin extracts from the industrial hemp cultivar, some CBD product companies attempt to fly under the federal radar by improperly marketing their flower- and leaf-extracted products as “hemp oil.” The HIA believes this is an incorrect, if not deceptive, practice.

A few CBD product companies have even used this “hemp oil” nomenclature when the CBD was extracted from the resin of the drug cultivar (marijuana) as opposed to the oilseed and fiber cultivar (industrial hemp). This is also damaging to the few CBD product companies operating lawfully under state law who are legitimately sourcing their CBD extracts from the leaves of the industrial hemp cultivar. Marijuana is a high-resin cultivar, and despite the fact that the ratio of CBD to THC in industrial hemp is higher than in marijuana, industrial hemp is a low-resin cultivar with little cannabinoid value at all (given the effort to extract such a small amount from such volume) unless one is fortunate enough to have access to the rare, new, higher-CBD varieties of non-psychoactive industrial hemp that are being created. The HIA is hopeful about this evolution and the fact that hemp farmers could subsidize certain of their hemp crops by selling the non-psychoactive leaves of these special varieties to medical companies. Ryan Loflin, a hemp farmer in Colorado where industrial hemp cultivation is legal under state law, is such a revolutionary, and has already harvested his first CBD crop, which was pre-sold.

Further evidence that all cannabinoids, including CBD, are federally illegal and considered to be Schedule I controlled substances, is the very necessity of the federal bill HR 5226, the Charlotte’s Web Medical Hemp Act of 2014, introduced July 28, 2014. This bill seeks to amend the Controlled Substances Act to exclude therapeutic hemp and CBD from the definition of “marihuana,” and to specifically exclude them from the controlled substance classification. This is a conflating, confusing bill in terms of true botany and science — it deems any Cannabis sativa L. plant with less than 0.3% THC to be “therapeutic hemp” even if it is a marijuana cultivar with a THC content that has been strained down to less than 0.3%. However, this bill does move cannabis liberation forward and away from inclusion as a federal controlled substance. This bill currently has 26 bipartisan co-sponsors (none from Washington as of yet) and needs a groundswell of strong support.

Citizens, businesses and organizations who are serious about liberating CBD medicine in the U.S. need to get behind this bill and relentlessly express their support of it to their federal legislators. Copying one’s state legislators on those communications is also an excellent idea. As a country, we can no longer tolerate the criminalization of safe, effective medicine that has no psychoactive effect.

Joy Beckerman is the president of Hemp Ace International and president of the Washington chapter of the Hemp Industries Association.