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Hemp industry fights DEA for right to sell hemp, again.

Michael Komorn


The hemp industry is fighting the DEA again for its right to sell hemp products, including CBD. The Drug Enforcement Agency and US Attorney Generals have spent considerable resources on hemp farmers, state hemp projects, even attacking, raiding and destroying hemp crops in Native American tribal land. Members of congress have joined in the lawsuit against the DEA.

Does the DEA even know what it is doing? Why did Eric Holder say hemp was schedule 1, prosecute hemp growers his entire tenure, only to retire and say that the laws should be changed?

In Olsen v Holder 2009, some interesting facts about scheduling were reported:


10. The Attorney General has delegated authority concerning "functions vested in the Attorney General by the Comprehensive Drug Abuse Prevention and Control Act of 1970" to the Administrator of the Drug Enforcement Administration. 28 C.F.R. § 0.100(b). The Administrator of the Drug Enforcement Administration has, in turn, delegated this authority to the Deputy Administrator of the Drug Enforcement Administration, pursuant to 28 C.F. R. § 0.104. See App. to Subpart R, § 12. For simplification, the Court will refer to the Attorney General and the DEA interchangeably throughout this order.


DEA Clarifies Status of Hemp in the Federal Register in 2001.


The Drug Enforcement Administration (DEA) today announced rules to clarify the legal status of “hemp” products. “Hemp” is part of the cannabis plant, which is also known as marijuana. The rules published in today’s edition of the Federal Register explain the circumstances under which “hemp” products are subject to control under federal law.

“Hemp” and marijuana are actually separate parts of the species of plant known as cannabis. Under federal law, Congress defined marijuana to focus on those parts of the cannabis plant that are the source of tetrahydrocannabinols (THC). THC is the hallucinogenic substance in marijuana that causes the psychoactive effect or “high.” The marijuana portions of the cannabis plant include the flowering tops (buds), the leaves, and the resin of the cannabis plant. The remainder of the plant — stalks and sterilized seeds — is what some people refer to as “hemp.” However, “hemp” is not a term that is found in federal law.

DEA Administrator Asa Hutchinson stated that “many Americans do not know that hemp and marijuana are both parts of the same plant and that hemp cannot be produced without producing marijuana.”

While most of the THC in cannabis plants is concentrated in the marijuana, all parts of the plant, including hemp, have been found to contain THC. The existence of THC in hemp is significant because THC, like marijuana, is a schedule I controlled substance. Federal law prohibits human consumption and possession of schedule I controlled substances. In addition, they are not approved by the Food and Drug Administration for medical use.


The rules that DEA is publishing today explain which hemp products are legal and which are not. This will depend on whether the product causes THC to enter the human body. If the product does cause THC to enter the human body, it is an illegal substance that may not be manufactured, sold, or consumed in the United States. Such products include “hemp” foods and beverages that contain THC.

If, however, the product does not cause THC to enter the human body, it is a noncontrolled substance that may lawfully be sold in the United States. Included in the category of lawful hemp products are textiles, such as clothing made using fiber produced from cannabis plant stalks. Also in the lawful category are personal care products that contain oil from sterilized cannabis seeds, such as soaps, lotions, and shampoos.

In recognition of the fact that there may be a small number of manufacturers and retailers who have inventories of hemp food and beverage products or other products containing THC that are intended for human consumption, DEA is providing a grace period. As set forth in the rules, any person who currently possesses illegal THC-containing “hemp” products will have 120 days (until February 6, 2002) to dispose of such products or remove them from the United States. However, during this grace period, no person may manufacture or distribute any such product for human consumption within the United States.

In issuing these rules, DEA has attempted to strike a fair balance between protecting the health and safety of all Americans and accommodating legitimate industry. The public has 60 days to comment on the rules in the manner set forth in the Federal Register. The rules can be accessed through the web site of the National Archives and Records Administration at www.archives.gov.

What to do if you are uncertain whether a “hemp” food or beverage product is illegal:

— Check the ingredients listed on the product label. If the label indicates that the food or beverage contains THC, it is illegal.

— Ask the manufacturer or distributor of the product if it contains THC. If it does, it is illegal.

What if you are unable to determine from reading the label and from asking the manufacturer or distributor whether the product contains THC?

In such circumstances, if you wish to err on the side of caution, you may freely dispose of the product. As stated in the rules that DEA published on October 9, 2001, anyone who has purchased a food or beverage product that contains THC has 120 days (until February 6, 2002) to dispose of the product without penalty under federal law.


Wait, Marijuana is the leaves and flowers and hemp is the stalks and seeds? What?


Defining “Industrial Hemp”: A Fact Sheet

The federal Congressional Research Service issued a report March 2017.


Industrial hemp and marijuana can be distinguished from one another in three key ways:

(1) differing statutory definitions,

(2) differences in chemical makeup and use, and

(3) differences in production practices. This fact sheet describes these three differences.



Hemp as an Agricultural Commodity Renée Johnson Specialist in Agricultural Policy March 10, 2017


Following enactment of the 2014 farm bill provision allowing for growing hemp under certain circumstances, several states have quickly been adopting new state laws to allow for cultivation. To date, more than 30 states or territories have enacted or introduced legislation favorable to hemp cultivation (Figure 6). Other states reportedly considering hemp legislation include Alaska, Arizona, Florida, Georgia, Iowa, Kansas, Massachusetts, Mississippi, New Mexico, South Dakota, Texas, and Wisconsin.53 (The status of state actions regarding hemp is changing rapidly, and information differs depending on source.54)

What about Cannabidiol?

Since the DEA has been attacking Cannabidiol hemp products, some states have been claiming CBD is illegal.

Department of Public Health Position Statement CBD Product Availability in Iowa



The Department of Public Health (Department) has received a number of inquiries about the legality of CBD products currently sold in the state of Iowa. It is the position of the Department that CBD products other than those manufactured under the Department’s regulatory program are not legal in the state of Iowa. There are three exceptions to this:

1. The following appropriately prescribed, FDA-approved drugs: Marinol, Syndros, Cesamet

2. The following drugs as part of a FDA-approved clinical trial: Sativex and Epidiolex

3. Products with less than 3% THC that are in a form recommended by the Medical Cannabidiol Board, approved by the Board of Medicine and adopted by the Department pursuant to administrative rule. Products that meet this exception do not currently exist, as the required administrative rule has not been adopted. The required administrative rule is anticipated to be adopted in 2018.

Products manufactured in the state under the provisions of Iowa Code chapter 124E will be available at Department licensed dispensaries only, starting in late 2018.

Nebraska AG issued a memo on Cannabidiol products.


TO: Nebraska Law Enforcement Agencies and County Attorneys

RE: Clarification of Nebraska Law Regarding Cannabidiol

DATE: September 1, 2017

Generally, cannabidiol has and continues to be included in the Uniform Controlled Substances Act’s legal definition of “marijuana.” See, Neb. Rev. Stat. § 28-401(13). This means that, with two exceptions, cannabidiol is a Schedule I controlled substance. The first exception is for cannabidiol obtained pursuant to Neb. Rev. Stat. 28-463 to 28-468. This exception was enacted in 2015 pursuant to LB390, which authorized the University of Nebraska Medical Center (UNMC) to produce or possess cannabidiol for a limited four-year medical study of seizures. The second exception is for cannabidiol “contained in a drug product approved by the federal Food and Drug Administration.” This exception was enacted in the most recent legislative session, pursuant to LB 487 which prospectively reclassifies cannabidiol in an FDA approved drug as a Schedule V controlled substance. See, Neb. Rev. Stat. §28-405. LB487 took effect on August 24, 2017. To date no drug products containing cannabidiol have received FDA approval.

Therefore cannabidiol or any product containing cannabidiol, obtained by any means other than the authorized UNMC study, remains illegal to possess, manufacture, distribute, dispense, or possess with the intent to manufacture, distribute, or dispense. Such conduct is subject to prosecution for illegally possessing or trafficking a Schedule I controlled substance.


Indiana AG issued an opinion of CBD , while the Indiana Governor said stores will have 60 days to destroy or remove CBD products from its stores.


As a matter of legal interpretation, products or substances marketed for human consumption or ingestion, and containing cannabidiol, remain unlawful in Indiana, and under federal law. This conclusion does not apply to any product that is approved by the FDA. 

There are currently two products that contain cannabidiol undergoing clinical trials, Epidiolex and Sativex.

The FDA tested some CBD products and found some products contained no CBD, some contained higher than .3% THC and other products fluctuated with percentages of CBD.

Also, the FDA has stated that because CBD is being investigated as a new drug, it cannot be marketed as a dietary supplement.


FDA has concluded based on available evidence that CBD products are excluded from the dietary supplement definition under section 201(ff)(3)(B)(ii) of the Act [21 U.S.C. § 321(ff)(3)(B)(ii)]. Under that provision, if an article (such as CBD) has been authorized for investigation as a new drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public, then products containing that substance are outside the definition of a dietary supplement. There is an exception if the substance was “marketed as” a dietary supplement or as a conventional food before the new drug investigations were authorized; however, based on available evidence, FDA has concluded that this is not the case for CBD.

The FDA is ignoring history when it says CBD is a "new drug". CBD was an ingredient of Extract of Cannabis, a formulation in the US Pharmacopia dating back to 1851.

The fight against hemp, marijuana, cannabis continues.


Congress members defend CBD, blast DEA’s hemp decision

Published January 12, 2018 | By Kristen Nichols

In a bold show of support for the hemp industry and CBD, 28 members of Congress are asking a federal appeals court to reject the Drug Enforcement Administration’s argument that cannabidiol is a Schedule 1 drug.

The Congress members filed the brief Thursday in conjunction with a pending lawsuit against the DEA.

The 9th Circuit Court of Appeals is set to hear arguments in the case Feb. 15.

The Congress members – 22 Democrats and six Republicans – argue that the DEA is “blatantly contrary” to the 2014 Farm Bill when it argues that CBD is a marijuana extract and therefore illegal.

“The Farm Bill’s definition of industrial hemp includes any part of the plant, including the flower,” the Congress members argue in the brief.

The members conclude that the federal agency’s rule about CBD was an “abuse of DEA’s administrative procedure and rulemaking authority.”

The lawyer who wrote the brief for the Congress members, Steven Cash, told Marijuana Business Daily that Congress members took the extraordinary step of weighing in on the lawsuit in hopes of seeing the courts resolve the conflict between the Farm Bill and the DEA’s interpretation on the Controlled Substances Act.

“Apart from arguing about the relative benefits, flaws and dangers of medical marijuana and hemp, it appears we’re going to solve this (conflict) through traditional avenues, the courts,” Cash said.

The DEA said in late 2016 that because CBD cannot be easily extracted from non-flower parts of the cannabis plant, CBD should be considered a controlled substance. The decision brought a hasty lawsuit from the Hemp Industries Association and a CBD business.

A lawyer for the hemp companies says the brief will show judges that Congress understood what it was doing when it authorized hemp production, meaning not just the stalks and seeds but the whole plant.

“Congress has spoken, yet again,” Bob Hoban said in a statement. “The industrial hemp industry has seen exponential growth … and this case represents the most significant challenge the U.S. hemp industry has seen to date.”


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