The Drug Enforcement Administration (DEA) says that marijuana extract is a Schedule I controlled substance. Specifically, “marihuana extract” means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant.” 81 FR 90194 (Dec. 14, 2018). This DEA amendment to 21 CFR § 1308.11 takes effect on January 13, 2017.

The DEA further confirms that cannabidiol (“CBD“) falls under the above definition of “marihuana extract”. DEA Response to first comment at 81 FR 90194.

CBD — touted for treating seizures  (see here, too), and for being antiemetic, anticonvulsant, antipsychotic, anti-inflammatory, anti-inflammatory, antioxidant, anti-tumor and antidepressant — has been characterized as non-psychoactive, as opposed to THC. Jahan Marcu, et al., suggest that it would perhaps “be better to say that CBD is ‘not psychoactive like THC [etrahydrocannabinol],’ rather than repeating the familiar and somewhat misleading refrain that ‘CBD is not psychoactive.'”

Whether or not the DEA’s foregoing December 14 announcement (“Announcement”) amounts to a restatement of its prior position or a new policy, the Announcement begs the question whether the DEA has the authority to classify marijuana extract as a schedule I drug.

For starters, although the Announcement references “one or more cannabinoids that has been derived from any plant of the genus Cannabis,” no federal statutory definition exists for cannabinoids nor cannabis. Instead, federal statutory law defines marijuana as follows:

“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” 21 U.S.C. § 802(16) (emphasis added).

Consequently, to what extent is the DEA — which is part of the Justice Department and thus a part of the executive branch of the federal government — legally permitted to go well beyond statutory language to classify substances as Schedule I controlled substances? Schedule 1 controlled substances are illegal to possess for any purpose.  21 U.S. Code § 812 

The Hoban law firm in Colorado asserts that: “Cannabinoids are not illegal if they are derived from certain parts of the plant, and the Farm Bill expressly indicates that the entire plant is lawful, as set forth above.” The Hoban firm further addresses the DEA Announcement. On the other hand, former NORML director Jon Gettman believes the DEA has wide-ranging authority to regulate cannabis. However, see two paragraphs above for the statutory limitation on the definition of marijuana, whereby marijuana “does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant…”

The DEA Announcement stands in contrast to Virginia state law, where the non-hash oil parts of the cannabis plant are not considered Schedule 1 drugs for purposes of Virginia criminal law. Va. Code § 18.2-247(D) (defining marijuana) and Va. Code § 54.1-3446 (listing hashish oil as a Schedule I controlled substance).

CBD is lawful in several states at the very least for physicians to recommend for one or more ailments. This includes Virginia, which in 2015 defined CBD and permitted physicians to recommend CBD oil and THC-A oil for intractable epilepsy. Va. Code § 54.1-3408.3. Virginia criminal law designates such physician-recommended CBD oil and THC-A oil possession as an affirmative defense. Va. Code § 18.2-250.1(C).

As much as the Obama administration disappointed in its marijuana enforcement actions, Donald Trump’s administration should be expected to be even more hostile to marijuana. After all the dizzying strides that the marijuana industry has made in Colorado and other states where marijuana has become lawful, and continued efforts to legalize domestic hemp production, the Trump administration’s marijuana policies may make federal litigation all the more necessary and extensive to sort out the federal government’s limits in regulating and prosecuting cannabis and hemp.