The Drug Enforcement Administration (DEA) filed a new rule stating that cannabis extracts and any cannabinoids such as CBD are now classified as a Schedule I Drug. However, according to Todd Winter, ESQ, a founder and Managing Partner at WINTER LLP, the DEA isn’t exactly operating within the confines of the law. In fact, the way Winter sees things, there are a number of red flags that need to be addressed when looking at the way the DEA has approached this subject and this strange ruling.
On Tuesday, December 13, the DEA amended the Code of Federal Regulations (CFR)—and it’s is sending waves of panic through the cannabis industry. According to the amended CFR, cannabis extracts are apparently labeled a Schedule I substance, and that may drastically affect how extract companies operate in the U.S.
As a result, the DEA stated that all cannabis extract companies must rewrite their paperwork to reflect the update by January 13, 2017. This change may greatly hinder many extract companies’ ability to sell legally in multiple states, and even worse, may hurt the patients who rely on those companies for CBD-based products. It’s not just the news of the new rule that was suspicious, but the wording as well. The DEA felt the need to use any reference to cannabis as “marihuana.” Additionally, CBD derived from hemp is not specifically defined under the Federal Controlled Substances Act (CSA). Therefore, it is not a Schedule I Substance under the United States Code (USC).
CULTURE talked with Winter about the DEA’s rule and why their move doesn’t mean that CBD and other cannabis extracts are a Schedule I substance, but, CULTURE also spoke with DEA Headquarters Public Affairs Officer Barbara Carreno about the rule and what the DEA plans are on the topic moving forward.
The public opinion on this ruling is currently ill-informed. Following the amendment to the CFR, impatient advocates immediately began to assume the worst. Some made wild accusations about the DEA’s motives without fully understanding how the amendment would affect cannabis and CBD or extract businesses and patients. Keywords including “CBD OIL DECLARED Schedule I,” calling it a “new law” as if it were an official supreme court movement, or claiming that the DEA has “banned” CBD.
Barbara Carreno was happy to set the record straight about the DEA’s move, explaining to us that it was an internal decision made to help their work more effective and clear. “This Federal Register Notice does not change the control status of anything having to do with marijuana,” she said. “These extracts were Schedule I before yesterday, and they still are. No provisions of the Controlled Substances Act (registration, security requirements, research protocols, etc.) have changed. This is a record-keeping matter.”
Todd Winter also explained that the DEA’s recent amendment will not affect anyone in the ways that news outlets have initially been reporting: “The CSA has not changed; there has been no change in law. CBD derived from hemp is not illegal; it’s not a Schedule I drug regardless of what the DEA has done,” Winter said. “Judicial enforcement or judicial resolution of what the DEA has done is not going to happen because it didn’t really happen legally. Regardless of what the DEA has done, or said, or written on the changes they have made, it’s totally irrelevant because it’s not law. Only Congress can pass our laws, so anyone currently selling CBD derived from hemp products can continue to sell this as if this didn’t happen, because in my opinion, this didn’t even happen.” Although it’s still unclear regarding how CBD derived from hemp is defined, as far as current knowledge goes, nothing in general has changed. This entire topic was meant to be an internal-only situation.
When asked about the Federal Register that received the amendment, he discussed the important differences between the CFR and USC, “The CFR is written by governmental agencies to come up with subject matter of the laws, but it has no legal basis whatsoever, with respect to interpretation or enforcement,” Winter added. “The CFR is a group of federal agencies, and the USC is the actual code of law that is enacted by Congress.”
But why did this happen? Why did the DEA publish such a modification, and why did the DEA feel it necessary to state that cannabis extracts should be classified as Schedule I? Carreno explained that separating the many different compounds is essential to the FDA and DEA process in rescheduling cannabis, and in the new research that the DEA is demanding on the cannabis plant, they need to figure out a way for cannabis compounds to be recreated in a laboratory, in order to be rescheduled.
“DEA established a new drug code for marijuana extracts (which includes, but isn’t limited to, CBD) as a means to more easily and accurately track scientific research on marijuana,” she continued. “The cannabis plant contains hundreds of compounds, and there are over 400 studies into marijuana and its various components taking place. Separating the extracts from other parts of the cannabis plant makes our work more efficient.”
Winter suggested that advocates and interested parties fully educate themselves in the legal matters like this and to keep supporting one another to be as knowledgeable as possible in the industry, so misinformation is not perpetuated. “I think just continue to move forward as a community, supporting one another is how we got here and the only way to continue pushing forward,” said Winter. “People in the industry, business owners, and peripheral companies in the industry can’t get caught up in all this noise. They have to continue fighting for what the truth is, and not just the first news that’s pushed out, that spreads like wildfire in the industry. Any news spreads like wildfire in our industry, good or bad, but it’s taking a moment to step back to find the truth behind it and proceed accordingly.”
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