Law Group in Colorado Takes Stand Against DEA Over CBD Hemp Oil
Recent actions by the Drug Enforcement Administration (DEA) have sent shock waves of fear and confusion through the cannabis community over the last 2 weeks.
For their part, the DEA said the action is simply the final implementation of something that started 5 years ago. “The gist of the issue is that DEA established a new drug code for marihuana extracts as a means to more accurately reflect the activities of scientific research and provide more consistent adherence to the requirements of the Single Convention,” said Russ Baer, a spokesman for the DEA. We have not changed any control status with this Federal Register Notice. Everything remains schedule I, so no other provisions of the law (registration, security requirements, research protocols, etc.) change. Companies will simple [sic] use a new code for extracts.”
“It’s not intended to be speculative (and) doesn’t read into anything that we’re looking at in the future,” he told The Cannabist. “It’s just a final order on a rulemaking proposal that was initiated back in 2011.” Baer went on to say that although shipping CBD oil remains illegal under federal law, it is not a priority for the DEA, which he said is “engaged with the medical community. We have new strategies.”
“On it’s face, it seems like a benign act,” said Robert Hoban, managing partner for the Hoban Law Group in Colorado. “The simplest way is to say that the rule itself doesn’t track the statute and accordingly, it’s an invalid rule.”
“The sky is not falling, but this is not some benign coding function either,” Hoban said. “At the end of the day, the DEA needs to sit down, read the Controlled Substances Act, read the farm bill and understand that what they’re saying has practical implications on commerce and on patients around this country. That’s not weight they should throw around so lightly.”
So what will happen? With the new Trump Administration taking the reigns of government next month, that is anyone’s guess. The cannabis community is trapped somewhere between hoping for the best and preparing for the worst.
DEA Hurts Growing Industry and Exceeds its Authority Regarding Scheduling Controlled Substances
DENVER, CO, UNITED STATES, December 14, 2016 /EINPresswire.com/ -- Denver, Colorado – On December 13, 2016, the DEA issued its Final Rule, “Establishment of New Drug Code for Marihuana Extract,” which serves to potentially devastate developing businesses and consumer, textile and manufacturing industries related to cannabinoids. Robert Hoban, a cannabis, cannabinoid and hemp lawyer and expert as well as an adjunct professor of law at The University of Denver, states the DOJ and DEA cannot unilaterally make law and schedule controlled substances, thus causing this Final Rule to exceed the DEA’s authority. Instead, such actions require an act of Congress.
As is the case here, the DEA is an agency that has previously sought to exceed its authority contrary to applicable law. It is anticipated that this “final ruling” and determination will be challenged both in court and administratively across the country. With 28 states that already have medical cannabis laws on the books, 8 states passing adult use laws in the November election, and numerous other states enacting industrial hemp legislation, the industry is up for the challenge of litigation against any government agency that operates contrary to prevailing law and enforcement policies.
The DEA’s Final Rule seeks to broadly expand and override existing definitions of controlled substances by newly creating a “Marihuana Extract” classification. The effect of this Final Rule appears to be incorporation of any and all cannabinoids from the Cannabis plant as a Schedule 1 controlled substance, despite the fact that many such cannabinoids are naturally occurring derived from non-“marihuana” portions of the plant or or from entirely different plants altogether. Problematically, the Final Rule fails to acknowledge there exist certain parts of the plant, and certain types of the plant – namely, industrial hemp – which cannot and should not be treated as a “Marihuana Extract.” Notably, the DEA has sought to unilaterally create laws before, and has lost, when challenged.
Hoban surmises, “The feeling is that this is an action beyond the DEA’s authority and we believe this is unlawful and we are taking a course of action for our clients. This Final Rule serves to threaten hundreds, if not thousands, of growing businesses, with massive economic and industry expansion opportunities, all of which conduct lawful business in reliance upon the Federal Government also acting pursuant to law, and as ordered by the Ninth Circuit in 2003 and 2004. We will see the Federal Government in court.”
Colorado law group takes stand against DEA regarding CBD hemp oil
DENVER -- Last week, the Drug Enforcement Agency said CBD oil is illegal, a schedule one substance, because it’s derived from marijuana or hemp. It said it’s something that has been on the books for a while.
Schedule one is the same category as heroin and LSD, but one Denver-based law firm wants the classification changed.
"On it's face, it seems like a benign act," said Robert Hoban, managing partner for the Hoban Law Group. "The simplest way is to say that the rule itself doesn't track the statute and accordingly, it's an invalid rule."
Hoban said there are two problems with the DEA’s definition of marijuana, both referring to how the controlled substance act deals with the drug.
First, he said not every part of a marijuana plant is illegal. Second is an issue with THC, the chemical that causes marijuana’s psychoactive effect. THC is illegal, but Hoban said CBD oil isn’t.
"The sky is not falling, but this is not some benign coding function either,” Hoban said. “At the end of the day, the DEA needs to sit down, read the Controlled Substances Act, read the farm bill and understand that what they're saying has practical implications on commerce and on patients around this country. That's not weight they should throw around so lightly."
Hoban intends to work with the DEA and lawmakers to diplomatically get the classification changed. If nothing changes, there likely will be a lawsuit.