The gray area of the law surrounding CBD extracted from hemp turned black and white on Monday when a federal appeals court sided with the DEA confirming that CBD is a Schedule 1 banned substance. Retailers around the country like Lucky Brands have started offering hemp-based CBD products, even in some states where neither hemp or marijuana have been made legal, since the law concerning CBD extracted from hemp was not entirely clear and the movement to legalize cannabis has such strong momentum. For now, the decision by the appeals court makes clear that those substances are indeed illegal by federal standards.
“We will be appealing, and we will be funding that appeal,” said Michael Brubeck, CEO of Centuria Natural Foods and a plaintiff in the case.
The agency also scoffed at the suggestion that CBD is being made from anything but flowering parts of the cannabis plant because cannabinoids “are found in the parts of the cannabis plant that fall within the … definition of marijuana, such as the flowering tops, resin and leaves.”
The three-judge panel of the 9th Circuit agreed. Their decision means that the DEA was within its authority to clarify CBD as a “marijuana extract.”
The United States is failing at keeping up with the worldwide perspective on CBD. At the end of last year the World Health Organization deemed CBD to be non-toxic and non-addictive. There is a push right now internationally to remove marijuana entirely as a Schedule 1 substance. After this decision, hemp producers will only be able to sell CBD products legally in states that have legalized hemp.
Why the DEA thought this was a worthwhile lawsuit to file is a big question. Jeff Sessions has even said that it is not currently on the Justice Department’s agenda to pursue small marijuana cases. Hemp-based CBD is representative of small marijuana cases considering cannabidiol is not even psychoactive and people use it to soothe aches and pains. Why would the DEA feel like pursuing this case was worth their time or money? The case started in 2016 when the DEA wanted a clarifying rule about the illegality of CBD since it is extracted from the cannabis flower.