This new rule does not create any new substantive regulation or law regarding the legal status of marijuana or marijuana extract. Instead, it creates a new tracking code number for “Marihuana Extracts” (which include cannabinoids).
Previously, Marijuana Extracts were classified under the code number for “Marihuana”. Under the new rule, extracts are now classified separately. The DEA uses these codes to track quantities of controlled substances imported to and exported from the United States.
This new rule affects only DEA-registered entities who previously were required to track such materials. As the document states, “[t]he only direct effect to registrants who handle marihuana extracts will be the requirement to add the new drug code to their registrations.” The rule becomes effective on January 13, 2017.
In this newly published document, the Department of Justice explains that the creation of the new drug code will simply “allow for more appropriate accounting of such materials consistent with [United Nations Conventions] treaty provisions.”
Regarding the legal status of CBD derived from industrial hemp, it would remain business as usual. The 2014 U.S.Farm Bill was an act of Congress signed by the President who creates the highest law of the land. The DEA cannot create law and attempt to redefine law passed by the U.S.Congress which defined industrial hemp in section 7606 as “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.”
Upon reading the rule, it is clear that the rule simply creates a new Administration Controlled Substances Code Number for cannabis extracts – concentrates such as shatter, wax or rosin. This is an administrative measure, not an enforcement action. Although an initial reading of the publication might make it seem like an attack on hemp-derived CBD, the rule mentions neither “hemp” nor “CBD” in either the proposed or final rule.
Eric Steenstra, executive director of the Hemp Industries Association, indicated that although his legal team is reviewing the document, “this isn’t how [the DEA] goes about scheduling a substance.”
Furthermore, the DEA, which is an arm of the Department of Justice, is not allowed to interfere with a legal state licensed cannabis business. Recent case law that set precedent for this proposition was delivered in the U.S. Court of Appeals for the Ninth Circuit. The case opinion is published and may be viewed at https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10117.pdf