On Wednesday, 12/14/16, The US Drug Enforcement Agency published its “Establishment of a New Drug Code of Marihuana Extract” in the Federal Register.1 The register entry proclaims that the DEA definition of “marijuana extract” is:
“…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.”
To clear up any confusion over its meaning, the register entry further states “Extracts of marihuana will continue to be treated as Schedule I controlled substances.” Among many other things, CBD hemp oil falls into that wide ranging definition.
What is CBD Hemp Oil?
For that matter, what is hemp?
Hemp is simply the cannabis plant. In common usage, hemp is cannabis that is bred to have low THC (tetrahydrocannabinol), the psychoactive component of cannabis.
What is not so simple is the word “marijuana.”
“Marijuana” is not an actual plant. It is a pejorative nickname for cannabis and it refers exclusively to the cannabis plant when used for the purpose of achieving a state of euphoria, or “high.” It is complex term to define. The simple definition from Wikipedia:
“Marijuana” or “marihuana”, etc., is a name for the cannabis plant and more specifically a drug preparation from it. Marijuana as a term varies in usage, definition and legal application around the world. Some jurisdictions define “marijuana” as the whole cannabis plant or any part of it, while others refer to “marijuana” as a portion of the Cannabis plant that contains high levels of Tetrahydrocannabinol (THC). Some jurisdictions recognize “marijuana” as a distinctive strain of cannabis, the other being hemp. The form “marihuana” is first attested in Mexican Spanish; it then spread to other varieties of Spanish and to English, French, and other languages.
When the federal government criminalized marijuana, it was actually criminalizing a concept. The lawmakers seeking to curtail the market for hemp in 1937 were the very people charged with defining the concept of marijuana, shaping a culture that would continue to demonize the hemp plant for the better part of a century. As defined by the Marihuana Tax Act of 1937, “Marihuana means all parts of the plant Cannabis sativa…but shall not include the mature stalks of such plant, oil and cake made from the seeds of such plant.”
“…there are no known examples of the use of this word prior to 1894. It became identified as the “devil’s weed” by early supporters of prohibition, and many Americans don’t know any other name for the cannabis plant.
“The Spanish word ‘marijhuana’ was adopted to reinforce the connection between the ‘devil’s weed’ and Mexican immigrants who, allegedly, first introduced it to American society. Being anti-marijuana was also a way to be anti-immigrant. (Note: In the early 1970s, the Nixon Administration adopted a policy of standardizing the spelling of the word as ‘marijuana.’)”2
And thus, the federal government not only gave us the word for the concept it was defining, it also helpfully cleared up its spelling (which was apparently a memo that the 2017 DEA staffers didn’t get.)
As mentioned, what is commonly known as hemp has lower concentrations of THC. It also has higher concentrations of cannabidiol (CBD), which decreases or eliminates its psychoactive effects. CBD hemp oil is oil made from this high-CBD, low-THC hemp.
Up until the DEA rescheduled cannabinoids, CBD hemp oil has been considered lawful for sale and purchase. Now scheduled as a Schedule One drug, CBD hemp oil is considered a drug with high potential for abuse and no medical purpose, a distinction it shares with marijuana and other equally dangerous drugs such as heroin and PCP.
According to the federal government:
- Hemp = low THC cannabis
- “Marihuana” (neé “marijuana,” neé “marihuana”) = evil cannabis
- Hemp has the same risk/value profile as heroin.*
* I’m admittedly engaging in exaggeration for effect, but not much. The Drug Enforcement Administration’s new leader, Chuck Rosenberg, said during a conference call last week that marijuana is “probably not” as dangerous as heroin, before adding “I’m not an expert.”
CBD Hemp Oil for chronic facial pain
CBD hemp oil is a promising treatment for chronic facial pain. Anecdotally, it has proven effective against nerve pain in individual case studies. Many studies have also demonstrated the efficacy of cannabinoid compounds in the treatment of neuropathic pain.3 Researchers believe that CBD hemp oil has a place in the arsenal of chronic facial pain treatments. For a more in depth discussion on the evidence for the efficacy of hemp products against chronic facial pain, check out our previous blog post Medical Marijuana and Chronic Facial Pain.
How Can The DEA decree That Something Is Illegal?
Skeptics posit the question: Isn’t this somewhat like policemen making up the laws that they will enforce? They argue that making all cannabinoid containing hemp derivatives illegal is outside of the purview of the DEA, pointing out that the agency is charged with enforcement of drug laws and not the creation of them. The argument, though reasonable at first glance, is invalid in this case. The DEA was charged by Congress with the task of scheduling drugs to facilitate the enforcement of the drug laws. The DEA, completely within its mandate, rescheduled all of the cannabinoid containing derivatives of the hemp plant to the Schedule One classification. Congress already enacted legislation deeming all Schedule One drugs illegal. Therefore, the federal government, via the DEA, just made a perfectly legitimate “end run” around Congress to legislate the criminality of cannabinoid containing hemp derivatives via decree. Yet, in the end, it was the result of an act of Congress.
The DEA says “Don’t Worry”
The DEA says that is hasn’t actually changed anything with respect to the legality or illegality of cannabinoid containing hemp derivatives, pointing to the fact that the pronouncement states “…extracts of marihuana will continue to be treated as Schedule I controlled substances.” As explained in Rolling Stone 4:
According to Robert Capecchi, Director of Federal Policies at Marijuana Policy Project, [CBD hemp oil consumers] have arguably been breaking the law all along.
“A lot of the storylines that I’ve seen – or at least the initial reaction to this final rule – makes it seem as if these CBD oils and extracts are being more restricted than they currently were, and that’s just not true,” Capecchi says. “[The DEA] says that they’ve always considered marijuana extract, regardless of whether it’s CBD or THC or other cannabinoid, to be a Schedule I substance.”
Capecchi believes that the DEA has decided to make this clarification now for the reason that it stated in their recent notice: they are simply updating their list of specifically coded items to better comply with treaty obligations.
Melvin Patterson, a spokesperson for the DEA, confirmed: “It basically helps the DEA, as well as other people that are doing research on marijuana extracts, from a coding standpoint,” he says. Currently, if the DEA wants to know who is doing research on CBD, for example, they’d have to comb through all authorized marijuana research in total. This code, Patterson says, helps them access this information more efficiently.
Patterson also confirms that the DEA has always considered marijuana extracts to be under the Schedule I umbrella. “This is only really an internal kind of housekeeping coding issue,” he says.
The DEA seems to be seeking to alleviate the concerns of CBD hemp oil consumers, yet something in their reassurance stands out as decidedly not reassuring. While it appears to be true that nothing has technically changed, that doesn’t mean that cannabinoid containing hemp derivatives aren’t illegal as Schedule One drugs. It means that they have been illegal all along. Anything that is illegal is, by definition, enforceable by law enforcement and punishable by law. What remains to be seen is to what degree the federal government will enforce the law prohibiting cannabinoid containing hemp derivatives.
What About the Incoming Administration?
Two decades ago, Trump the Democrat supported the decriminalization of all drugs as a way to undermine the drug czars by taking away their profit base. In the last two years though, Trump the now-Republican has a different perspective. No longer espousing making all drugs legal, he seems to still be supportive of medical marijuana. “In terms of marijuana and legalization,” he said, “I think that should be a state issue, state-by-state. Marijuana is such a big thing. I think medical should happen — right?” As recently as February of last year, Trump told Bill O’Reilly that he is “in favor of medical marijuana 100 percent.” 5 His comments are reason to be hopeful.
His choice for US Attorney General however, is reason for concern. Alabama Senator Jeff Sessions, the Trump administration’s likely pick for head of the Justice Department, is vocal about his own anti-marijuana stance. As recently as April, he lamented in a Congressional hearing that years of work “trying to send [the] message with clarity that good people don’t smoke marijuana” has been reversed. He said “the result of that, to give that away and make it socially acceptable, creates demand and results in people being addicted or impacted aversely.”6
Having it both ways
The divergent views of Trump and Sessions are fitting when you consider that, as a nation we can’t come to any agreement on the issue.
On a state level, voters in several states have passed referendums to legalize marijuana for medical use (and in some cases, recreational use,) and lawmakers in others states are introducing bills to legalize the medical use of hemp oil.
Federally, a scant 9 months prior to the DEA’s very anti-hemp rescheduling, the GOP was leading the charge to legalize hemp everywhere. Less than a year before that, Congress passed legislation to ban federal prosecutors and anti-drug agents from spending funds to undercut state medical marijuana laws. 7 The federal government’s attitude towards hemp has been friendlier in the last few years than anytime prior to 1937, which makes the DEA’s move concerning as the executive branch goes from blue to red, and prompts the question: What exactly are they smoking at the DEA?
In an almost comical coincidence, just as the US put all cannabinoid containing hemp derivatives in the same category as heroin, the UK reclassified cannabinoids as medication.8
1. Federal Register. Vol. 81, No. 240. Wednesday, December 14, 2016. Rules and Regulations ↩
2. MARIJUANA VS. CANNABIS: POT-RELATED TERMS TO USE AND WORDS WE SHOULD LOSEHigh Times, September 10, 2015.↩
3. McDonough P, McKenna JP, McCreary C, Downer EJ. Neuropathic orofacial pain: cannabinoids as a therapeutic avenue. Int J Biochem Cell Biol. 2014 Oct;55:72-8. doi: 10.1016/j.biocel.2014.08.007. Epub 2014 Aug 21.↩
4. Inside DEA Ban on Marijuana Extracts, Rolling Stone, December 27, 2016.↩
5. Where does Trump stand on pot? Advocates want to know, The Denver Channel, January 3, 2017.↩
6. Oldest U.S. Senators Accused of Holding Biased Marijuana Hearing US News and World Report, April 14, 2016.↩
7. Republicans Rally to Legalize Low-THC Cannabis Everywhere US News and World Report, April 22, 2016.↩
8. UK Now Classifies CBD as Medication, Mixmag, January 4, 2017.↩