The DEA filed a new rule on January 13, 2017, which seeks to control all naturally occurring cannabinoids from the Cannabis Sativa plant. The DEA created a new definition of marijuana extract which includes “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis.”

Problem: This new DEA rule purports to broadly outlaw all 80-plus cannabinoids, including CBD, CBN, CBG, etc., when the Controlled Substance Act, only specifically identifies THC as the unlawful component of marijuana, and the Farm Bill separates out industrial hemp as being a different plant from marijuana, and makes all parts of the hemp plant lawful, including our hemp oil extracts.

This issue has already been litigated before in federal court in the 9th  Circuit Court of Appeals in a case filed in 2003 and decided in 2004. The DEA lost then, but now they’re trying again. In the earlier case, the 9th Circuit went so far as to say that the DEA could not regulate the trace amounts of THC naturally occurring in hemp, because the Controlled Substances Act only allows them to regulate THC in marijuana, and synthetic THC of any kind.

The Farm Bill renders the entire industrial hemp plant, including extracts, as lawful. This law went into effect in 2014. The Farm Bill expressly states that industrial hemp is lawful in spite of what the Controlled Substances Act says about cannabis. It carves out an exception to the Controlled Substances Act for cannabis plants with less than 0.3 THC by dry weight. It says these cannabis plants are not marijuana, that they’re industrial hemp.

We call what we grow “medicinal hemp” because it’s high in cannabidiol, or CBD, and we use it to make supplements to help people feel better. From a legal standpoint it falls into the “industrial hemp” category because it’s less than 0.3% THC.

Other cannabinoids, including CBD (or cannabidiol), which is one of the primary molecules that makes our product effective, ARE NOT ILLEGAL CONTROLLED SUBSTANCES. The DEA has admitted in Congressional hearings that many cannabinoids occur naturally in other non-cannabis plants, like coneflower, daisy, liverwort, black pepper and cacao, and CBD does not cause psychoactive effects.

Not only are they not expressly scheduled as Controlled Substances under the Controlled Substances Act, the 9th Circuit stated in its opinion that hemp products “do not contain any controlled substances as defined by the Controlled Substances Act.”

The Ninth Circuit case said that the DEA’s ruling was invalid and unenforceable because it went beyond what Congress authorized, and the DEA didn’t have authority to override Congress and create new crimes by making up new rules.

Congress de-funded the federal government from interfering with the Farm Bill. Congress passed a group of laws collectively called the “Spending Bill” which blocks federal law enforcement authorities from interfering with conduct authorized by the Farm Bill, which for us means growing hemp under a registration with the Colorado Department of Agriculture, which has a program authorized under the Farm Bill.

So we don’t think the DEA’s position will hold up. But the “gray area” around this issue is the reason we use overseas credit card processing for the immediate future.

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