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Will CBD Oil Soon Be Federally Legal? Does It Really Matter?

In a decision released April 30th, the 9th Circuit Court refused to order a retraction of the December 2016 DEA “extracts designation” which re-affirmed the DEA’s stance that CBD is a Schedule I Controlled Substance—meaning it’s still, supposedly, federally illegal.

But there’s still quite a bit of confusion around the matter. While the court’s ruling upheld the DEA’s right to consider CBD a Schedule I substance, it certainly seems like neither the industry nor consumers care. It’s business as usual on websites that sell CBD. No one has stopped producing or selling CBD and closed their doors. And consumers demand for CBD is still growing like a weed. So, why does everyone seem to be taking this news so nonchalantly if CBD is federally illegal?

There are a number of reasons for this phenomenon. First, and foremost, not everyone agrees that the decision means that CBD from hemp is illegal.

Immediately after the ruling, the Hemp Industries Association (HIA), Centuria, RMH Holdings, and attorneys at Hoban Law quickly downplayed the decision, calling it “good news for the industry.”

Colorado HIA president Tim Gordon explained, “Essentially, the Court’s Order finds that the Farm Bill’s hemp amendment exists separate and apart from DEA’s Final Rule and that where there is confusion or conflict as to lawful hemp activities, DEA’s Final Rule does not apply.”

Also, according to a report posted on PotNetwork, cannabis activist and attorney Rod Kight, whose blog Kight On Cannabis has “become the definitive source for wading through the judicial waters of the fight for legalization” suggests that CBD from industrial hemp is still lawful since the Farm Act preempts the Controlled Substances Act. And all the CBD available online for shipping nationwide is made from hemp extract.

Hemp extract is as legal as any extract from a legally cultivated plant, as far as the industry is concerned. Hemp, although regulated, is a federally legal commodity (unlike marijuana). This means (according to industry lawyers) that hemp extract is no more or less legal than, say, vanilla or peppermint extract.

Another reason that it’s business, as usual, is that the neither the U.S. Drug Enforcement Agency—which is responsible for scheduling of drugs—nor the U.S. Department of Justice—which is responsible for enforcing those laws—are actively pursuing CBD makers and consumers.

In fact, the DOJ is prohibited from spending money on enforcing cannabis prohibition in states with legally regulated cannabis programs. Even if it weren’t, there are far more egregious crimes going on in this country that need their attention.  

Even still, regardless of the fact that there seems to be some wiggle room for the industry, some in Washington are taking it upon themselves to clear up the confusion and settle this issue once and for all.  

A Hemp Bill Is Imminent

There are very few lawmakers left who honestly believe that hemp—the category of cannabis strains that doesn’t contain THC and doesn’t make you high—should be lumped in with marijuana in the federal government’s illicit drug laws. In fact, most lawmakers realize the injustice that this has caused in terms of denying American farmers and consumers the benefits of this crop. And for what?

One lawmaker, in particular, Senate Majority Leader Mitch McConnell, recently announced that he had plans to introduce legislation to remove hemp from the DEA’s auspices altogether.

Should it pass, McConnell's hemp bill will remove restrictions on banking access and water rights, among other benefits for hemp farmers such as the ability to purchase crop insurance. More importantly, it would make the recent federal court decision to toss a challenge to the DEA’s stance on CBD a moot point.

Many experts believe that McConnell’s bill is the first such bill actually to have a chance of passing. McConnell has already successfully inserted some of the bill’s language into the latest Farm Bill which comes up for a vote this month. And senators are already working on a standalone bill. Many lawmakers are highly optimistic about its chances of gaining enough support to pass.

If this happens, the CBD industry can say goodbye to the DEA and DOJ once and for all. Not that anything will change. Again, it will still be business as usual.

But that doesn’t mean we’re all totally in the clear. There is still a lot of confusion at the state level, evidenced by seizures of CBD products in Illinois and Tennessee, and the more recent seizures in Texas. All of these are misguided attempts to protect the public from something that’s not only harmless but medicinally beneficial in a myriad of ways. But this is a story for another day.