Remember when the DEA adopted a “Final Rule” criminalizing “marihuana extract,” presumably including all extracts from the cannabis plant? Well, the DEA recently clarified that Final Rule, and based on the DEA’s own explanation and interpretation, marijuana extracts derived from mature stalks of the cannabis plant or industrial hemp not illegal under the federal Controlled Substances Act (CSA).
The DEA’s highlights of its clarification are that:
- The “marihuana extract” definition does not include materials or products excluded from the definition of marijuana set forth in the CSA.
- The rule includes only those extracts that fall within the CSA definition of marijuana.
- If a product consists solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product is not considered “marihuana” or a “marihuana extract.”
This is a significant departure from a plain reading of the Final Rule, which creates a new “Controlled Substances Code Number” for marijuana extracts “containing one or more cannabinoids from any plant of the genus Cannabis.” When the DEA adopted this Final Rule in December of last year, our opinion was that it formally outlawed all CBD products, including those derived from hemp, because CBD is a cannabinoid and hemp is a plant of the genus Cannabis.
Marijuana is prohibited by the CSA and any CBD product derived from marijuana is therefore prohibited. However, the CSA exempts from the definition of “marijuana” the plant’s “mature stalks.” The logical conclusion is that CBD products derived from mature stalks containing no THC were not illegal (though the FDA would disagree). Another arguably legal route existed for CBD products derived from industrial hemp (part of the cannabis plant with less than 0.3 percent THC on a dry weight basis) lawfully grown in a State that has enacted hemp laws in compliance with section 7606 of the 2014 US Farm Bill. Because congress sanctioned industrial hemp, there was an argument allowing the sale of industrial hemp extracts in states with compliant programs. This meant that prior to adoption of the Final Rule, CBD products derived from mature stalks that did not contain THC or industrial hemp existed in a legal “gray” area.
Under the DEA’s Final Rule clarification, CBD products derived solely from mature stalks or industrial hemp containing little-to-no THC are not prohibited under the “marihuana extract” rule. However, this clarification is not an official ruling by the DEA as it does not have the same authority as a formal rule. Instead, this clarification provides guidance as to how the DEA will enforce the “marihuana extract” Final Rule. In addition, the marihuana extract Final Rule is currently subject to a lawsuit filed in the Ninth Circuit Court of Appeals by members of the hemp industry, and this clarification may cause that court to rule that the clarification limits the Final Rule.
The bottom line is that this clarification should be taken with a grain of salt as the Final Rule itself carries more legal authority and this clarification is not an official ruling by the DEA — it’s just the agency’s interpretation of its own rule, which can change as the DEA so desires. So, if you’re selling hemp-based CBD products with little to no THC, keep your head on a swivel as the DEA develops and implements this Final Rule.