The legality of marijuana (also known as cannabis) has been a popular topic in recent years with thirty states and the District of Columbia having laws that legalize marijuana in some form. However, under federal law, marijuana is a Schedule I drug and remains illegal for all purposes. Schedule I drugs are those for which there currently are no accepted medical uses, and have a high potential for abuse. Other Schedule I drugs include heroin, LSD and ecstasy.
While the illegality of marijuana is clear at the federal level, even when legalized at the state level for medical and/or recreational use, confusion swirls around substances derived from the cannabis plant. One such substance is cannabidiol, also known as CBD. CBD is a cannabinoid without any psychoactive properties. In other words, a user of a CBD will not feel “high.” Alleged benefits from the use of CBD, range from curing cancer to relieving anxiety, inflammation, seizures, epilepsy, PTSD and multiple sclerosis.
Legality of CBD
Although many CBD producers advertise that CBD is legal in all 50 states, this remains uncertain as shown by Indiana Governor Eric Holcomb’s warning to retailers that CBD oil must be pulled from shelves. Additionally, in Indiana the Department of Child Services threatened to remove a 20 month infant from her home after her parents gave her CBD oil to treat her seizures. And, Indiana is not alone. The Department of State Health Services in Texas is considering a proposal that would require inspectors to detain all food products and cannabis oils that have added cannabidiol.
Under federal law, CBD is not listed separately in the Code of Federal Regulations and is, thus, controlled in Schedule I as a “derivative” or “component” of marijuana (21 USC 802). And, the DEA has clarified that CBD is considered an illegal substance, just like any other marijuana product.  To this end, on December 14, 2016, the DEA published the Establishment of a New Drug Code for Marihuana Extract (the “Final Rule”), which created a new code number under the Controlled Substance Act for marijuana extract. The Final Rule made clear that “[e]xtracts of marihuana will continue to be treated as Schedule I controlled substances.” In response, the Hemp Industries Association has filed a lawsuit against the DEA, challenging the Final Rule. The case, Hemp Industries Association, et al. v. Drug Enforcement Administration, et al., is currently pending in the Ninth Circuit, Case No. 17-70162. Read more ›