Cannabis Litigation Alert! The December 14, 2016, DEA Memo

On December 14, 2016, the Federal Register contained an item (21 CFR Part 1308) that rocked the cannabis industry. It was a DEA memo that established a new code for “marijuana extract.”

The problem is that the memo stated that the DEA’s position is that all cannabis extracts, including CBD oil, are all federally illegal Schedule I substances.

“Extracts of marijuana will continue to be treated as Schedule I controlled substances,” the notice says.

This is a clear violation of established legal precedent that infringes on the rights of those that have invested millions of dollars into businesses that involve the use of cannabis extracts and could cause irreparable damage.

This DEA position must be challenged immediately. We can’t wait for the DEA to try and exercise this discretion and arrest someone. In my opinion, the cannabis industry needs to take a proactive approach and challenge any adverse ruling that violates our rights.

This is one such situation where the industry needs to immediately take the DEA to task. A lawsuit against the DEA should be filed immediately seeking a judicial ruling on this issue.

In the notice issued on December 14, the DEA stated, “There is no major change in law brought about by the Register Item. Rather, it serves to clarify and reinforce the DEA’s position on all cannabis extracts, including CBD oil. That position is: they are all federal illegal Schedule I controlled substances.”

This is the same thing the DEA tried to do when it was sued by Hemp Industries Association and others in 2004. Basically the DEA tried to regulate businesses selling food and cosmetic products containing hemp seeds and oils.

Sounds familiar? In the December 14, 2016, memo the DEA is basically trying to do the same thing—regulate any and all products containing cannabis extracts, including CBD oil.

This position is contrary to established federal law, and the DEA needs to be reigned in when they try to go beyond the law.

In Hemp Industries Assoc., v. DEA, 333 F. 3d 1082 (9th Cir. 2003) the court held that the definition of THC in Schedule I referrers only to synthetic THC, and that any THC occurring naturally within cannabis is banned only if it falls within the Schedule I definition of “marijuana.” The DEA’s relevant rules and regulations may be enforced only insofar as they ban the presence of marijuana or synthetic THC.”

The court further stated that the listing of “marijuana” in Schedule I excludes:

“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.”

Therefore, the conclusion of the Court in 2004 was that THC naturally occurring within non-psychoactive hemp plants did not fall under the DEA’s regulation. So, how can the DEA in 2016 issue a memo stating that “all cannabis extracts, including CBD oil . . . are all federal illegal Schedule I controlled substances”?

Doesn’t the DEA’s position fly in the face of this 2004 federal ruling? We believe it does and that the cannabis industry needs to act quickly and proactively to seek immediate redress. The cannabis industry must show its strength to the government, and that we are willing to stand up and fight against government wrongdoing—like the December 14 DEA memo.

Once litigation is filed, will the U.S. government and the DEA fight against us in Court or admit that our position is right and change their federal cannabis policy?

Will the federal government want to spend money to fight this futile battle, or will the government finally have the courage to legalize and deschedulize marijuana on the federal level?

I believe that this is the direction that we are headed and that we will get there eventually, but there are ways in which we can hasten this progress.

Do we want to sit around and just let it happen on its own, or do we want to be an active part of this movement and obtain federal legalization/deschedulization as quickly as possible?

How many lives will be saved when people are able to obtain cannabis to treat their afflictions without the fear of being arrested? How many lives will be saved when manufacturers are able to make products containing cannabis extracts without the fear of being arrested?

One way we can convince the government that the cannabis industry is serious is quick and effective litigation when necessary to protect our rights and interests against excessive government intrusion.

The great parliamentarian Edmund Burke said, “The only thing necessary for the triumph of evil is for good men to do nothing.” It is time for us to stand up and support the cannabis legalization efforts in every way that we can, especially through litigation.

Leave a Reply

Your email address will not be published. Required fields are marked *