Editor’s Note: Click here to read how the 2018 Farm Bill changes this.
DEA Reschedules Epidolex, Not All CBD Drugs
In a major shift in federal policy, the DEA announced that it has rescheduled Epidolex, a CBD based anti-seizure drug with less than .1% THC content. The DEA moved the drug from Schedule I to Schedule V. This is the first time ever a cannabis based drug has been rescheduled. The DEA based this decision on the FDA’s approval of the drug. Now that a CBD product has been shown to have accepted medical use, CBD no longer fits the requirement that Schedule I drugs have no such use. Many think this will lead to the rescheduling of CBD entirely. An internal report by the FDA says they are willing to take it farther and deschedule CBD all together. Until then, CBD manufacturers should not expect rescheduling unless their specific product has received FDA approval.
Other CBD Products Are Still Schedule I
The Brookings institute previously published a detailed report explaining why CBD is not legal in all 50 states. It comes down to this, CBD is defined as Schedule I Marihuana by the DEA. The DEA has the authority to both set and interpret the Schedules. If the DEA says CBD is Schedule I, it is Schedule I. Additionally THC is Schedule I including any trace amounts in a CBD extract. The DEA made an exception to this rule when it approved Epidolex allowing up to .1% THC. Not much, but better than nothing. It is nearly impossible to produce a CBD extract with no trace amounts of THC.
What if the CBD is derived from legal hemp plants and not flowering cannabis plants? First off, CBD derived from hemp is not considered medical grade by most experts. Second, it does not matter the source of the CBD. Just the fact that it is a cannabinoid makes it Marihuana and Schedule I.
But I See CBD Everywhere!
Why then are CBD products on the shelves at Walmart, advertised in national magazines, and manufactured by mainstream companies? Because they don’t know the law or they don’t care. Maybe they didn’t talk to a lawyer, and if they did, maybe were they not given accurate advice. Maybe they were thoroughly warned and decided to take a gamble because being prosecuted would never happen to them. Can you afford a DEA seizure, raid, or arrest? If not, then you should think twice about entering the CBD market.
Watch Out For State Laws
A caution for CBD producers in legal states like California. CBD is often classified as a cannabis product that requires a state license. In California, the Department of Public Health (CDPH) regulates cannabis manufacturing including CBD extracts. According to them, manufacturing CBD products from hemp requires a state industrial hemp license. These licenses have not been developed yet and are not currently available. Therefore the CDPH license is the only one available to hemp-based CBD manufacturers. This is a lot of trouble to go through for a hemp-based CBD company. In states like California, CBD manufacturers may be better off obtaining a CDPH cannabis license and producing whole flower extracts than ignoring state law and taking the hemp-based CBD gamble.
Hemp Derived CBD Is Better Than Nothing for Desperate Patients
Some individuals in need of CBD for personal use may have no other option than hemp derived CBD. This would include anyone who does not have access to a cannabis dispensary or store, anyone who cannot risk a positive THC test, and anyone who cannot afford to purchase expensive flower derived CBD products. Possession is still illegal under federal law and some state laws, but the risk of prosecution is lower than that of the businesses selling the CBD products. Patients should proceed with caution.
