The federal ban of cannabidiols may be coming to an end sooner rather than later. Although there was a mild setback regarding federal legalities of industrial hemp extract and cannabidiols, favorable legislative progress continues to be made and many positives have come out of a recent federal court hearing.
For now marijuana/cannabis extract and cannabidiols will remain on the DEA’s Controlled Substance Act (CSA) as a Schedule I drug and hemp producers may only sell cannabidiol in states where it is legal. This classification remains after a three-panel judge in the Ninth Circuit Court of Appeals in San Francisco denied a petition on April 30 that argued against the DEA’s 2016 Final Rule—designating cannabidiols as a Schedule I drug.
The Ninth Circuit Court of Appeals’ petition denial is viewed in legal circles as more of a necessary default than an actual legislative defeat. The outcome of the ruling in no way, and contrary to some media reports, finds that industrial hemp or hemp extracts should be viewed as illegal and provides better clarity and precedent for potential hemp deregulation rulings in the future.
The petition, submitted by the Hemp Industries Association, R.M.H. Holdings, and Centuria Natural Foods, and represented by leading national hemp and cannabis law firm, Hoban Law Group, was circumstantially denied because of procedural oversight rather than lack of merit.
The Ninth Circuit judges held that, because the petition’s points were not raised or commented on during a necessary “notice-and-comment” period prior to the DEA’s proposed rule, they had to deny the petition on procedural grounds. Basically, the judges agreed with many points of the petition, but their hands were tied due to legislative policy regarding commentary that was not submitted during the DEA’s initial Final Rule proposal in 2011.
The petition itself argued the DEA overreached when scheduling marijuana extract under the CSA without conducting adequate scheduling action or finding specific evidence required of the CSA. Petition arguments also stated the 2016 marijuana extract ruling violated federal laws including the Congressional Review Act, Information Quality Act, and Regulatory Flexibility Act.
Many pro-hemp findings—like the legitimacy of the Farm Bill’s hemp amendment cited by the federal judges in this hearing—provided a mostly sunny forecast after the cloudy petition denial.
Representing attorneys from Hoban Law Group pointed out the Courts’ findings:
• The Court found the Farm Bill, which protects non-psychoactive hemp, pre-empts and is protected from the DEA’s 2016 ruling and authority.
• 29 bipartisan members of Congress confirmed that the Farm Bill’s hemp amendment (Section 7606 of the Farm Bill) protects the cultivation of industrial hemp and also the processing, manufacture, distribution, and sale of hemp-derived products, including non-psychoactive hemp products that contain cannabinoids.
• The DEA admitted (during the hearing) it had no intentions of controlling cannabinoids “generally,” and they are in agreement that the Farm Bill’s hemp amendment overrides DEA’s authority and the CSA.
On the court hearings Bob Hoban of Hoban Law said, “Given the pervasive confusion and irreconcilable conflicts of the law that have led to product seizures, arrests and criminal charges against those involved in the lawful hemp industry, the Petitioners believe that the (DEA’s) Final Rule must be invalidated, absent the Court clarifying and further resolving these conflicts and their severe consequences,”
Petitioners and Hoban Law attorneys are presently weighing future action in regard to a re-hearing. The Petitioners have 45-days (as of May 1) to submit a rehearing request.
With active support from Congress and agreement from federal judges on several points of the submitted petition, it is clear momentum for federal deregulation of cannabidiols continues to mount. PrimeMyBody will provide updates on this Marijuana Extract Rule Decision and future hemp-related legislative action. To read Hoban Law Group’s response visit https://bit.ly/2GPUfhM
If you live in a state where hemp oil is being debated for legality we strongly urge you to contact your local representative. For representative contact information in your region visit the resource section on NationalHempAssociation.or
