Another Misguided Move on Marijuana by the DEA?

December 15, 2016 | John W | Staff Writer

The U.S. Drug Enforcement Administration (DEA) established a new code (7350) for marijuana extracts on Wednesday, which classifies all marijuana extracts as Schedule I controlled substances. This new code does not include marijuana resin, which will continue to be classified under code 7360, which is also treated as a Schedule I drug.

The alleged intent of the new rule is to bring the U.S. into compliance with UN Conventions regarding international drug treaties and, as written in the Federal Register, “will allow for more appropriate accounting of such materials consistent with treaty provisions.”

In clarifying the classification of marijuana extracts, this new code appears to go beyond the authority of the DEA. It also overturns an ostensibly widespread understanding operating across the industry: That marijuana extracts with less than three-tenths of one percent (0.3 percent) of THC are legal under federal law. This assumption is based on a reading of the Federal Farm Bill (i.e. Agricultural Act of 2014), as pertaining to hemp food products, which enshrined the “0.3 percent THC or less” into federal law.

Naturally, with regard to Schedule I status (which includes drugs like heroin, ecstasy, and LSD), there is no logical rationale for distinguishing between a cannabis extract with 0.3 percent of THC or less and a hemp food product with 0.3 percent of THC or less. After all, it is not possible to get the euphoric (“high”) effect from such a miniscule amount of THC, regardless of whether it is a marijuana extract or a hemp food product.

The DEA tried something similar once before when they issued an “interpretative rule” against hemp food products on October 9, 2001, which stated that “any product that contains any amount of THC is a schedule I controlled substance.”

But this misguided move against hemp food products failed when the Hemp Industries Association (HIA) responded with protracted litigation against the DEA. The Ninth Circuit Court of Appeals eventually rejected the DEA’s ban on hemp foods in 2004, with Judge Betty Fletcher writing, “[T]hey (DEA) cannot regulate naturally-occurring THC not contained within or derived from marijuana—i.e. non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance. The DEA’s definition of “THC” contravenes the unambiguously expressed intent of Congress in the Controlled Substances Act (CSA) and cannot be upheld.” The DEA declined to appeal.

Clearly, this same argument can made for non-psychoactive marijuana extracts. In fact, according to the language of the rule, it appears that any extract taken from a cannabis plant will now fall under Schedule I classification. But does this not include, by definition, extracts from hemp (which are simply cannabis plants with low concentrations of THC)? It would according to the 1976 study published by the International Association of Plant Taxonomy, which concluded “both hemp varieties and marijuana varieties are of the same genus, Cannabis, and the same species, Cannabis Sativa.”

Given the decision of the Ninth Circuit Court of Appeals, it is difficult to understand why the DEA would attempt to classify, as they put it, “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis” without distinguishing said extracts from their non-psychoactive counterparts based on their percentage of TCH. As Judge Fletcher wrote, “The DEA has no authority to regulate drugs that are not scheduled.” And, yet, by classifying non-psychoactive extracts as Schedule I, the DEA once again, “contravenes the unambiguously expressed intent of Congress in the Controlled Substances Act (CSA).”

In the words of Colorado cannabis attorney Robert Hoban, “This action is beyond the DEA’s authority. The DEA can only carry out the law,” he said, “they cannot create it. Here they’re purporting to create an entirely new category called ‘marijuana extracts,’ and by doing so wrest control over all cannabinoids. They want to call all cannabinoids illegal. But they don’t have the authority to do that.”

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