CBD Oil As Schedule 1 Drug: Was DEA’s Move To Criminalize Cannabidiol Illegal Or Sneaky?

Marijuana legalization advocates were shocked on Wednesday when the U.S. Drug Enforcement Administration classified cannabidiol, or CBD oil, as a Schedule 1 drug. Such a classification makes the substance illegal, even as it is openly sold in many a store in the U.S. But new reports suggest that the DEA may have pulled some sneaky tactics in criminalizing CBD.

The DEA’s move to classify CBD oil as a Schedule 1 drug is documented in the Federal Register, where the official ruling, in essence, suggests that the substance is as illegal as traditional whole-plant marijuana. But it was the spelling of the word “marijuana” that got the most attention, as it was filed as “marihuana,” a spelling that hasn’t been commonplace in several decades. Was that language anomaly the DEA’s way to sneak in a change to existing marijuana policy, or is the agency, as some had suggested, so out-of-touch that it uses a spelling straight from the days of Franklin Delano Roosevelt?

According to the Washington Post, pro-weed advocates had separately made both speculations in their own blog posts. Nonetheless, the publication also spoke to DEA spokesman Russell Baer, who asserted that the agency wasn’t trying to use language to get away with classifying CBD oil as Schedule 1. He says that it was merely done as an “administrative measure” for record-keeping, and when it came to the peculiar use of the outdated spelling “marihuana,” he noted that the DEA uses both modern and archaic spellings interchangeably.

#Cost benefits most #FDAApproved drugs replaced with #Marihuana #Food in #Prohibition hurts us all. https://t.co/k4eKKkCNG5

— Marijuana is Tree of Life (@MimiTexasAngel) December 17, 2016

Aside from the spelling issue, there’s also the matter of whether the DEA was within its bounds or not. Pro-marijuana publication Leafly opined yesterday that DEA Administrator Chuck Rosenberg “made an aggressive bid” to lump CBD oil in with other Schedule 1 drugs, concluding that the substance must be illegal just because it’s derived from hemp. The Leafly report added that the agency had tried something similar in 2001, only to be “slapped down” by federal courts, but also stressed that a lot of experts and marijuana legalization advocates believe that the DEA may have been overstepping its authority illegally.

To justify that latter point, Leafly cited two ways CBD users are protected under law. As the DEA is under the Justice Department’s umbrella, the agency is prohibited under the Rohrabacher-Farr amendment from interfering with state laws and regulations on medical marijuana. CBD oil and other similar products are covered by this amendment, even in CBD-only states, where patients can only buy cannabidiol oil, but not marijuana in more traditional, psychoactive forms.

In other words, CBD oil may be Schedule 1 per the DEA’s memo, but such cannot be enforced in the 28 states where medical marijuana is legal, and the 16 CBD-only states.

In addition, the 2014 Farm Act comes with an exemption to the Controlled Substances Act, albeit only for states that have undertaken certain hemp cultivation initiatives.

Leafly talked in-depth about the DEA’s “Interpretive Rule” from 2001 that sought to criminalize any product with any amount of tetrahydrocannabinol – marijuana’s active agent – as Schedule 1. A coalition of companies making hempseed oil products challenged this ruling in federal court, and emerged victorious, as the court concluded that the DEA doesn’t have the authority to regulate drugs, such as non-psychoactive hemp, that aren’t regulated by Congress.

As for the new ruling, Leafly wrote that it may be harder for the DEA to defend once someone contests the listing of CBD oil as Schedule 1.

“At least the 2001 hemp rule directly addressed hemp. DEA Administrator Rosenberg’s attempt to pull CBD into the Controlled Substances Act as a Schedule 1 drug wasn’t even the point of this week’s rule. Rosenberg outlawed CBD under the guise of answering a question about CBD products that contained no other cannabinoids. But make no mistake: When it comes to Federal Register entries, there isn’t a word or a comma that isn’t vetted five times from Tuesday by a platoon of government lawyers. Rosenberg and the DEA knew exactly what they were doing.”

For the meantime, CBD oil is Schedule 1, and that’s how the DEA sees it. But as Leafly said, users of CBD products shouldn’t throw out their oil just because it’s been lumped in with traditional marijuana.

[Featured Image by Justin Sullivan/Getty Images]