On December 14, 2016, the DEA published a 3-page document in the U.S. Federal Register establishing a Controlled Substances Code Number for “marijuana extract,” and subsequently maintaining marijuana, hemp, and their derivatives as Schedule I substances.

The notice reads:

“This code will allow DEA and DEA-registered entities to track quantities of this material separately from quantities of marihuana. This, in turn, will aid in complying with relevant treaty provisions.”

The filing goes on to state that a new code number was required because the United Nations Convention on international drug control treats cannabis plant extracts differently than marijuana or THC.

The rule went into effect on January 17, 2017.

The document sent shock waves through the cannabis community.

So, did the DEA just classify cannabidiol, or CBD, a Schedule I substance?

While some major news outlets say yes, The Cannabist, a pro-marijuana website, says no. The Cannabist reportedly spoke with DEA spokesman Russ Baer, who said that the only change was that the cannabis extract had been given a new drug code, but no scheduling action had taken place. Baer told the website:

“The gist of the issue is that DEA established a new drug code for marijuana extracts as a means to more accurately reflect the activities of scientific research and provide more consistent adherence to the requirements of the Single Convention.

We have not changed any control status with this Federal Register Notice. Everything remains schedule I, so no other provisions of the law (registration, security requirements, research protocols, etc.) change. Companies will simple [sic] use a new code for extracts.” [1]

He added:

“(The rule change) recognizes that there is a potential medical benefit to some of the cannabinoids.”

Baer sought to reassure pot advocates that the move is in no way conspiratorial, and has nothing to do with the presidential transition taking place. He said it is “just a final order on a rulemaking proposal that was initiated back in 2011.”

Source: Time

The regulation creates a new identification number for cannabis extract to allow the DEA and other agencies to track shipments of the extract separately from pot. Previously, there had only been codes for marijuana and THC. [2]

The DEA said in the rule:

“For practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids. However, if it were possible to produce from the cannabis plant an extract that contained only CBD and no other cannabinoids, such an extract would fall within the new drug code.” [2]

The administration said the new regulation was created with the goal of making the U.S.’s approach to marijuana extract consistent with international standards.

Is this the DEA’s way of strengthening its grip on marijuana’s illegal status in the face of growing approval of the drug by Americans? Many marijuana advocates believe so, and see the DEA’s action as a way of stretching the definition of marijuana to cover products that are lawfully imported or produced domestically from plants containing low amounts of THC.

The DEA, however, says the move was has nothing to do with cracking down on cannabis and will in fact make it easier to study CBD.

Baer said:

“From a practical standpoint, we are giving priority, actually, to those researchers who are conducting research with marijuana extracts, [which] the internal code will allow us to track and prioritize.

We recognize there have been some studies that have been promising … and we want to be able to support that ongoing scientific research, particularly as it relates to marijuana extracts.” [3]

According to Baer, the new code deals largely with treaty obligations for drug tracking. But the terms are defined as “meaning 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.”

Colorado attorney Bob Hoban, who leads a national cannabis-focused law firm, said:

“It’s not the end of the world, the sky is not falling. But it does try to inappropriately and unlawfully expand their purview here.”

Source: University of Alabama at Birmingham

Hoban said that regardless of whether the move is merely an administrative one intended to better track research and imports and exports, there is still a danger that other federal and state agencies might use the drug codes as defining factors of what’s legal and what’s illegal. That could mean that CBD dealers would be prosecuted in much the same way marijuana dealers are prosecuted.

Furthermore, U.S. Customs and Border Protection could seize products that appear to be illegal substances. [1]

Hoban said:

“At a minimum, it interferes with commerce. At a maximum, it exposes people potentially to criminal action.

It worries me because the definition of any marijuana-derived products, such as cannabinoids, are not unlawful substances, per se. It seems like they’re trying to extend their authority over all cannabinoids.” [1]

Sources:

[1] The Cannabist

[2] Time

[3] U.S. News & World Report

Time

University of Alabama at Birmingham


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Post written byJulie Fidler:
Julie Fidler is a freelance writer, legal blogger, and the author of Adventures in Holy Matrimony: For Better or the Absolute Worst. She lives in Pennsylvania with her husband and two ridiculously spoiled cats. She occasionally pontificates on her blog.