CBD Status Quo, in Limbo
Despite the baited anticipation for announcements from the DEA and Congress this week, the announcements from Congress and the DEA today change nothing about CBD’s legal status in the eyes of the federal government.
FDA Approved Epidiolex…Now What?
Once the FDA approved Epidiolex, a medicine derived from CBD, as a drug for the treatment of severe forms of epilepsy, the DEA had 90 days in which to remove it from Schedule 1 of the Controlled Substances Act. That deadline expired last Sunday. In typical conservative bureaucratic fashion, the DEA acted as narrowly as possible.
Although this was the DEA’s opportunity to remove all cannabidiol (CBD), a non-psychoactive cannabinoid from the cannabis plant, from the schedule, instead the DEA tailored the re-scheduling action to only FDA approved drugs containing CBD and placed it on schedule 5 with cough syrup laced with codeine. This, despite the FDA and DOH report that CBD has almost no likelihood of abuse.
To make matters worse, the FDA also granted GW Pharmaceuticals Orphan Drug status for Epidiolex, which limits any other company from producing the drug for the next 7 years. So, the DEA has failed once again to give the ballooning CBD market any greater clarity regarding the legal status of the non-psychoactive substance derived from cannabis.
Senate Delays 2018 Farm Bill
The second announcement due out this week that was expected to clarify the legal status of hemp and hemp derived products like CBD was the 2018 Farm Bill. Every five years Congress must renew the Farm Bill to continue to subsidize farmers and issue food stamps.
However, Senate Agriculture Chairman Pat Roberts announced that the joint conference reached an impasse on passing the 2018 Farm Bill. Congress will fail to meet the September 30 deadline, when the 2014 Farm Bill expires, leaving many programs in limbo until the committee reconvenes after the election. Thankfully for those in the hemp industry, the Industrial Hemp Pilot Program is not one of the programs Congress is leaving in limbo. The Industrial Hemp Pilot Programs were codified under 7 USC 5940, which is still good law and has no sunset provision.
Congress created the Industrial Hemp Pilot Program in 7 USC 5940 as part of the 2014 Farm Bill as section 7606 and gave the states the authority to establish independent industrial hemp pilot programs to research the viability of hemp cultivation and marketing. Congress specifically removed Industrial Hemp from Schedule 1 by defining Industrial Hemp as “Notwithstanding the Controlled Substances Act…’Industrial Hemp’ means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
Notwithstanding such clear language, the DEA maintains through its statement of principles and Marijuana Extract rule, that CBD is a controlled substance. As of yet, no court resolved the question of whether or not Congress intended to remove Industrial Hemp, and all its derivatives, from Schedule 1 with the Industrial Hemp Pilot Programs.
What Happens Next for CBD?
So, where does this leave us? Unfortunately for CBD producers, right where we have been since 2014. The states have legislative authority to establish and maintain Industrial Hemp Pilot Programs, the DEA continues to maintain that extracts from Cannabis are a Schedule 1 substance, and the FDA maintains that CBD extract is a drug. The only thing holding back these federal agencies from acting on their opinions is the Continuing Appropriations Act.
The thin shield of the appropriations act continues to tie the agencies’ hands as long as the Industrial Hemp Pilot Programs remain intact. Through the appropriations act, Congress prohibits the use of federal funds in contravention of the 2014 Farm Bill. More specifically, no funds may be used “to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 [the Industrial Hemp Pilot Program] of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”
Despite the long-awaited announcements expected this week, the CBD industry remains at Status Quo, in Limbo.