Courts Reject Challenge To DEA Rule On Cannabis Extracts

May 4, 2018

At a press conference in Tennessee last February, local Sheriff Mike Fitzhugh stood behind a podium to announce that state law enforcement, together with the U.S. Drug Enforcement Agency and the FBI, had raided 23 local stores. Fitzhugh alleged the stores were selling products “resembling candy and containing a marijuana derivative.”

In fact, the candies contained a derivative of industrial hemp known as CBD, or cannabidiol. Under Tennessee law it’s completely legal.   

Tennessee is one of 34 states, including Colorado, that have enacted state law allowing for the cultivation of hemp. The Agricultural Act of 2014 also permits hemp as long as it contains less than 0.03 percent of the psychoactive compound THC.

Local media reported the charges against all 23 Tennessee businesses were later dropped, but there is still opportunity for confusion by law enforcement.  

On May 1, the 9th U.S. Circuit Court of Appeals rejected the hemp industry’s challenge of a new DEA rule. Enacted in January, the rule established a drug code for marijuana extracts and defines extracts from any plant of the genus Cannabis as an illegal substance. Hemp and marijuana are both from the genus cannabis, and the DEA’s rule makes no clarification for hemp.  

Colleen Lanier with Hemp Industries Association along with other hemp businesses tried to challenge the DEA’s rule in court. She said their concern is that regulatory agencies will continue interfering in hemp-derived CBD businesses.   

“Without the clarification, that leaves a window open for there to be a misinterpretation and we do have instances where that’s absolutely occurred,” she said.  

In their response, the 9th U.S. Circuit Court of Appeals said the Agricultural Act of 2014 (the Farm Bill) supersedes the DEA’s rule — but because this particular issue was not addressed during the public comment period in 2011, there are no procedural grounds to bring the issue to court.