Hemp industry loses case against DEA, as federal appeals court says CBD a controlled substance

hemp cbd dea, Hemp industry loses case against DEA, as federal appeals court says CBD a controlled substance

A federal appeals court sided with the Drug Enforcement Administration and upheld its decision that CBD is a Schedule 1 controlled substance – a major setback for the American hemp industry.

The decision, issued Monday by a three-judge panel of the 9th Circuit in San Francisco, means that hemp producers can only sell cannabidiol where it is allowed under state law.

It also means that states that allow CBD – even if they don’t allow the sale of high-THC marijuana – are violating federal law, the same as states that allow recreational cannabis.

CBD producers who brought the case vowed to appeal.

“We will be appealing, and we will be funding that appeal,” said Michael Brubeck, CEO of Centuria Natural Foods and a plaintiff in the case.

Based in Las Vegas, Centuria grows hemp and produces CBD products for sale in all 50 states. Centuria was joined in its challenge by the Hemp Industries Association.

Case history

The case started in 2016, when the DEA issued a “clarifying rule” stating that CBD is an illegal drug, because it is extracted from marijuana flowers.

Hemp producers cried foul, arguing that CBD can also be extracted from legal hemp flowers, and there is no way to tell whether extracted CBD came from marijuana or from hemp.

Brubeck and the HIA argued that the DEA was attempting to add a new substance to the Controlled Substances Act, something it cannot do.

The DEA said the extract rule was simply a clarification of existing law and that it “makes no substantive change to the government’s control of any substance.”

The agency also scoffed at the suggestion that CBD is being made from anything but flowering parts of the cannabis plant because cannabinoids “are found in the parts of the cannabis plant that fall within the … definition of marijuana, such as the flowering tops, resin and leaves.”

The three-judge panel of the 9th Circuit agreed. Their decision means that the DEA was within its authority to clarify CBD as a “marijuana extract.”

Preparing for appeal

The hemp industry has 45 days to ask the 9th Circuit to take a second look at the case, the first step to an appeal. Assuming the 9th Circuit again sides with the DEA, the decision may be appealed to the U.S. Supreme Court.

Brubeck and a cannabis lawyer who worked on the case said the DEA decision isn’t a total setback. The court noted that the 2014 Farm Bill allows states to experiment with hemp policy, giving CBD producers some protection if they can prove their products were legally produced.

“We’re encouraged that the court found that the Farm Bill is in fact valid,” attorney Garrett Graff said.

CBD production and the DEA rule “can coexist for those growing and processing industrial hemp pursuant to the Farm Bill,” he said.

Kristen Nichols can be reached at [email protected]

56 comments on “Hemp industry loses case against DEA, as federal appeals court says CBD a controlled substance
    • Tess on

      Yes and accept that their stand on this not only jailed people caused them to lose jobs as well as no longer qualify for jobs due to convictions for using this herb. They made slot of money from denying the public this medicine so they should have no further rights to the money that comes from it As punishment they should have to find all grow farms without complaint and the medicinal gain should be free world wide for their years of deceit. No big pharma no politicians. Should ever be allowed to interfere in this area of medicine sgain

    • John Bear on

      Absolutely Correct !!!!
      To all the money CONTROL’s
      Bank’s,Gov., Insurance Co., !!! One day your family member will come down with a SICKNESS THAT will require this type of so called drug and I pray that you don’t let them suffer !!!!!!

    • Carol Boylan on

      Absolutely! The abscience of pain is an interesting thing… people who haven5 had seizures, arthritis. Degenerative bone diezese, chronic pain. a child that is a low functioning autism and improves by marijuana, cancer patients going on chemo use it for Nausea!! I had nausea earlier today because we are moving and a took a ½ dose and I realized my nausea had gone away! True stories. It’s time to quit demonizing marijuana!!!

  1. LRP on

    I don’t think you read the ruling correctly. CBD and other cannabinoids extracted from Cannabis which falls under the 2014 Farm Bill (i.e. Industrial Hemp, <.3% THC) remains outside the CSA. Quote: "The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it. The Final Rule therefore does not violate the Agricultural Act."

    • concerned on

      This really caused a lot of confusion for a lot of companies. I’d expect better from a forum based on Hemp.

  2. Gary Hylton on

    For the lords case, ..

    Hod help us and please release the beautiful and helpfull, disease killing and pain reliefing and way less harmful an deep green plant named cannabis for all the people who truelly need this medicine for the misery these people have to fight through every second of every minute of every hour of every day of every week of every damn month of every very painfull slow as hell miserable damn year of every decade and these people have to live their life through their painful misery to tale care of their family’s and their selves and work and their places they live and just every thing through every day of every day they have to suffer and push through every single little event and every struggle they in the back of their mind wishing some how and just some way all their misery and all their pain and suffering would just stop and go away and never come back and some care souch they just wish they could just at least get a little break from it all …..My meaning is, their are millions of people in this world and out of all these millions of people their are way over half of them at least 88% of them are going through at least enugh pain and suffering they need this medicine at least once a week to help them through this suffering and misery and I personally kno this is true because it had helped me push through so much physical nagging chronic pain and also through so many personal every day mind blowing mental painfull complications in so many nerve tearing ways and also I have a hand full of life long friends that I see almost every day and have personally witnessed through the years that they at times were going through so much suffering that they were suicidal a lot of times and when they consumed cannibus occasionally their mind had chemically changed in good ways and they began going through this calming state and they quit being suicidal and switched their ways of thinking and quit dwelling on what was pilling them down and hurting them and they started thinking and focusing on the things that weren’t depressing and started smiling and laughing at things and just quit thinking about the bad things and its like their their mind had blocked all the pain and mental misery and then forcefully pushed out all the greatness and happiness and joy out their ears and nose and mouth and all the other holes on their bodies soooo….Well what I’m saying is that this plant is a Very important plant that can help so many people in this world and it can also help save so many people from dieing from their struggles and it is a life saver I kno this so personally because if I hadnt had this wonderfull medicine at times I would had need deceased years ago at a very young age and at this time I’m 30 years of age and if hadn’t been for this plant I know for sure and its the truth my life would had ended between the age of 17 and 24 years old and it is very much a shame that all these people that are hurting and suffering and ready to end their lives end up dieing because they didn’t have any way of relieving their struggles and I truely believe that most of these people that commited suicide if they just slowely tried consuming cannibus that at least 88% of them would had survived and still be alive all because of a simple looking beautifully looking gorgeous green wonderfll smelling very important and suffer fighting pain kicking soo very complex brilliant and simple plant that is the best medicine that not just treats one symptom, it helps fight pain and imflimation and and helps fight a many different diseases and it helps with seizers and narcolepsy and chrones disease and more things I can name so just please …..think about what all these Americans that are suffering that help build this country with the effort they sweated through this whole time and all these people need a medicine thats not going to have so much life threatening side affects and this medicine i think and so many countless others think is the answer…it is a miracale….it is a cure for certain complications and its a great and wonderfull helpfull treatment for such a vast wide range of so many different complications and so many miserable sideaffects and sympyoms and it juat needs to become a medication that is legal all across the country and not gust legal but needs to be federally legal and i do believe it needs to be regulated and only accessed by doctor only that so it doesnt fall into the childrens hands and into peoples hands that want and will get and consume it just for a thrill to just get high and to party….it is truely a medicine and should be at least a sechule 3 drug because its listed as a 1 and its most deffantly not a drug so bad that it shouldnt be legal federally so im just saying if you have a heart and you kno what chronic pain feels like and if you have ever gotten into a dark and cold and life ending mental state because of a person or because of cold hearted people or family or because of a mental condicion just please take your time and do the resurch and block out the teachings of the government and read what highly skilled doctors have to say about this medicine and just block out what you have been tought about it growing up and gather a lot of knowlege about the alements that this plant can treat and fight and also learn all the less worring side affects this medicine has that every other medication in the world has life threatening major effects that can kill you and compare the differences between the two categories ofvmadication and just please do the reasurch and gather all the facts and weed out all the bad opinions pf this plant and come togeather and haveca heart for these people and help them out or their misery and give them some relief so they can push on to live their lives without their misery and be able to simply smile and enjoy life and to pick theirselves up and live our their days and help them be their selves again and be happy ….so I’m just asking and have a many people behind me asking…..PLEASE. ….Just please free this medicine……Release this weed

    • Cher on

      Heartfelt & sincere….hope there are those still left with some compassion that will listen to your plea! ?

    • Jen Williams on

      My family has a publishing company #9Tribe and we are currently writing a book about Medical Marijuana…if you think you might be interested in writing about this…please let me know.

    • Kathy on

      I 100% agree… I have osteoarthritis which is very painful and a fatty liver… so I can’t take pain medication… This is the only hope I have for relief .
      Very well written…
      Thank you

    • praneet mazzia on

      You beat the point Gary. Good friend of spong bob! 🙂
      Gary: Do you think the sample that they take to lab is taking from hemp that mutate or hybrid seed from using synthesis stuff. ?
      Far as i know: if you stick with nature and the CBD from hemp is useful and benefit for human&animal. Even THC if come from the nature is good for curing disease . Should be safe.
      And i just know that some medicine that phamar created, they use synthesis marijuana, It’s insane idea that againt the nature. They have some reason hiding for harmful human or they just greedy for let’s the human addict and waste the time for created new in this world or they just want to be slave to under their control phamar power. Because It’s againt the nature. If you are phamar group should be helping by uncondition to human be, For best cure and healing. that’s all i thought.

  3. Christopher Simmons on

    These federal agencies (FDA,DEA), realize that if Cannabis and Hemp are legalized, then a significant portion of their “War on Drugs” policy/budget will be slashed. It will force them to go after the industry that has been funding them against Cannabis legalization, i.e., BIG PHARMA(opiates)!

    • Brian Kolodny on

      Absolute criminals. They need to keep them illegal so they can keep the bodies flowing into the private prison network, which their top brass have ownership in. That’s the cash cow the keeps all the kickbacks coming. Go look at how many of them have consulting revenue on their tax returns.

      By the way, where’s the legislation on the synthetic cannabis products? I just found out today about my friend Billie’s 28 year old brother who died from pharma created product that’s schedule 3.

      Where’s the justice?????

  4. Casey on

    DEA full of crap do they think the public is dumb? 29 states medicinal with more passing for recreational. DEA is unhumane, let’s let people suffer or die from opioids. Glad pharmaceuticals pay you . Marijuana is DEA cash cow

  5. Kim on

    Sunshine and the air we breathe is more harmful than Cannabis, did these judges not educate themselves, or are the being paid off?

  6. Mr Right Reverend Gregory Karl Davis on

    Chuck Rosenberg was the Acting Administrator at the DEA and published the CBD as Scheduled 1 Drug. Attorneys in this Case gave government A PASS. The President is required by LAW to nominate a DEA DIRECTOR and DEA DEPUTY DIRECTOR and the US CONGRESS is required to approve these nominations before the DEA is delegated the authority to rule on Scheduling issues. Naturally derived Dronabinol is FDA Approved for marketing as a Schedule 3 Drug by published in the Federal Register on November 1, 2010. The scientific evaluation has been completed and documented by the FDA & HHS and the Exhibits are documented. The Pothead Press and the Hemp Industry are NOT doing due diligence. See and read for yourself. Search term. Dronabinol. #1 result. http://www.govinfo.gov

  7. g on

    this is ridiculous!!! there is no other reason than money….. when will WHAT THE PEOPLE ARE FOR happen? at least, AT LEAST 65% of the US population is for….. PUT IT ON THE FEDERAL BALLOTS…. WE WILL VOTE YES!~

  8. Glory on

    The title of this article is completely inaccurate. The court’s decision does NOT say that CBD is a controlled substance. Nothing of the sort. Whatever was made legal by the 2014 Farm Bill is still legal and cannot be made illegal by a DEA Rule.

      • a. rasheed on

        The DEA is rejecting the Farm Bill. The Farm Bill is very clear and leaves no room for misinterpretation. THE DEA is a rogue agency and the Congress ought to put it in its place.

        • Glory on

          You are right. The DEA lobbied against the hemp provisions in the Farm Bill. Congress ignored them, and so the DEA is ignoring Congress.

  9. Robert Wolfe on

    I suggest this article misreads the court decision. The key argument was rejected on solely procedural grounds, i.e. the petitioner failed to timely object when the rule was proposed. Note the decision is “not for publication” and may not be binding elsewhere.

  10. Mark on

    The 2014 farm act may not be as protective to states and CBD producers as many think. Can there please be clarification regarding the feds approval of states to engage in hemp grow AS A PILOT PROGRAM. My understanding is farm act didnt give greenlight for straight to commerialization. It allows for regulated coordinated grow and research with farmers processors and universities; and use and market research, not to grow to sell.
    My understanding is that unless the state program rules and regs specifically allow for sale, direct to market/ commercial use/commercialization, then hemp can only be grown for research. That is, all the states making CBD and allowing it to be sold is doing so illegally federally.
    And those states that do want to approve CBD to be made and marketed need to work with DEA and get approval to do so.

  11. Beth Workman on

    You know, since we have CB receptors in our bodies and nursing mothers produce CBD in breast milk, should we arrest all nursing mothers or outlaw breast feeding? Then I’m an illegal producer as BOTH my children were breast fed. CBD is nothing but nature and is NOT psyco active. I sell Hempworx proudly as it is strictly from the Hemp plant and is FULL spectrum. Seed, stalk AND leaves. No other ingredients save the flavoring AND we have just launched the THC free oils. Remember your pain free days filled with fun and happiness. Why wonder when did your money go to Cheetos at 3 am and Pizza charge r us? Remember, it’s the CBD that our bodies produce naturally, not the THC that makes things foggy.

  12. Morris Beegle on

    Come on Kristen…not true.

    Monday, the Ninth Circuit Court of Appeals denied a petition from the Hemp Industries Association (HIA) to review the controversial “marijuana extract rule” issued in 2016 by the Drug Enforcement Administration (DEA). This was a disappointment to some who were hoping that the Ninth Circuit would issue an historic ruling akin to its 2004 order that the DEA could not prohibit the importation of non-psychoactive hemp products into the U.S.

    However, this very short decision should not be read as a substantive setback for the U.S. hemp industry.

    Contrary to some early reports, this ruling does NOT classify hemp-derived cannabidiol (CBD) as a controlled substance, nor does it signify that the popular hemp product is federally illegal. Indeed, the ruling has no legal or practical impact on hemp or hemp products.

    Here’s why:

    The Ninth Circuit declared that decision has no precedential value – meaning it is not binding on other courts or future judicial decisions. The court even stated that the disposition was “not appropriate for publication,” further limiting its value.
    The ruling’s lack of significance is largely due to the fact that it was decided on procedural grounds, not on any matter of substance. The Ninth Circuit ruled that the HIA had failed to meet a widely-accepted principle of administrative law: Before you challenge a federal agency in court, you must first exhaust all of your administrative remedies – and in this case, the HIA had not participated in the DEA’s earlier public notice and comment period.
    There’s even some good news in the order: The Ninth Circuit makes clear that the DEA’s Rule does not apply to hemp or hemp-derived products developed under state pilot programs authorized by the 2014 Farm Bill. The Court concisely states that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.” Accordingly, other hemp products exempted from the CSA – such as non-psychoactive hemp products that were the subject of the 2004 Ninth Circuit decision – should also be exempted from the DEA Rule.
    Perhaps even more significantly, during the litigation process, the DEA admitted that the marijuana extract rule did not apply to hemp. In a key legal brief, the DEA admitted that the Rule “does not apply to any substance that the CSA did not previously control as ‘marijuana.’ It simply requires that persons handling a subset of the materials defined as ‘marijuana’ write a different identification number on their administrative paperwork.”

    In short, the DEA’s “marijuana extract rule” does not apply to hemp or derivative products such as hemp-derived CBD. Period. And the U.S. Hemp Roundtable stands ready to defend that principle if ever the DEA tries to interfere with state pilot programs – or the interstate sale or transport of hemp from those programs – in contravention of clear federal law, as confirmed in the recent Omnibus Spending Law (and discussed in this Congressional amicus brief.)

    We are aware, however, that this ruling will generate further concern about DEA’s enforcement intentions. That’s why it is so critical that Congress pass the Hemp Farming Act of 2018, which would permanently remove hemp and hemp products from the purview of the Controlled Substances Act. Accordingly, we ask all hemp supporters to contact their Senators and Congressmen, and urge them to co-sponsor S.2667 and HR 5485. We’ve even developed an online portal to make it easy to have your voice heard:

    • Susan Barnhardt on

      This is an excellent summation. Addressing CBD, I believe, it is imperative that each company; each brand and each SKU within that brand and or category have Full Track-ability from seed to shelf and that information is readily available. A process of best practices and certification by an approved facility will go far in the ability to effectively manufacture; market and sell CBD product as well as Full Spectrum. (CBD = Certified Business of Distribution) These practices are standards in the CPG industry and while I am aware that many of the CBD companies follow practices , I do not beleive that there are standards followed by everyone.

      What I would like to point out is that our country needs hemp production overall and the dialogs seem to be All about CBD. CBD is not the hero; HEMP is the HERO. As a group, I believe we need to look at the whole plant. I also believe that lobbying for legislation based on the whole plant and the industry as a whole will deliver the result that is beneficial of multiple groups of Americans. It is not just about CBD.

      In an article in The Cannabist, June 18, 2017 written by Bruce Kennedy, he notes based on research by Vote Hemp and The Hemp Business Journal that Hemp Revenue comes from
      – Personal Care Products at $163 million
      – CBD at $130 million
      – Hemp Foods at $130 million
      – Industry at $125 million

      who can look at those numbers and not align with supporting the overall Hemp Farming Act? After all, 81% of the revenue will come from products other than CBD.

      I do support CBD and believe in its qualities and the need for it. However, I look at the big picture and want the USA Hemp farmers and manufactures to be able to provide sustainable jobs and incomes for our citizens. And the opportunity for consumers to use all of the Hemp products and live a healthy Hemp Lifestyle.

      Thank you.

  13. Christopher Simmons on

    The definition of a chemical being on “Schedule 1”, is that a drug has no “medicinal value “. Epidiolex is a CBD-based anti-epileptic medication that not only has been approved by 29 other countries, but has also been highly touted by an FDA advisory panel. It is up for review on June 27th for approval. Our judges have already ruled that CBD is a “Schedule 1” drug, however Epidiolex has proven its medicinal value, which means that the “corrupt” bought and paid for DEA/FDA officials will show their true colors when they “DISAPPROVE” this medication on June 27th. I know these politicians will rule against this much needed medication just like they shot down CBD with their corrupt DEA. The people have to do something about these corrupt politicians who allow these pharmaceutical companies to continue to produce poison (opiates) that are killing people, but won’t lift 70 year old racist legislation against a plant that Jesus himself used to heal the masses.

  14. Lisa on

    My name is Lisa James now you tell me you have allowed cigarette and liquor to be legal. I have a serious problem with that, I was diagnosed with stage 4 lung cancer while living in Bay City Michigan. I became a legal marijuana patient due to the fact the drug they were giving me was killing me. I don’t wish cancer on no one. You know what save me legal marijuana I can’t smoke it but I can eat it and that’s what I did to help heal my body from the pain and the drain on the throwing up and the fatigue. Yeah marijuana did that. I never heard of no one on legal marijuana kill somebody liquor does that but it’s illegal. Cigarettes my cancer comes from smoking Newports which America allows to makes it look so beautiful which is not they kill you. Wake up!!!
    You will never know what I’m talking about until one of you in the DEA office or A Judge has been hit with cancer.

    • Professor Dave on

      I like what you said Lisa. They won’t change their tune until one of their own families’ are hit with cancer. I work with patients every day. I see the difference between those who come to me prior to being poisoned by chemo and rads and those who still have their immunity system intact. I know the difference. I also watched as cancer destroyed my Mom. I also watched how radiation created tumors in my sister-in-law Kim after she was found to be “clear” of cancer from hemp oil and I saw how the tumors physically ruptured above her crotch. The smell in the room was incredible. She died on the morning of my 50th birthday.



  15. Matthew on

    The DEA have no constitutional authority meaning, “No Power” to enforce any regulation law or legislative instrument whatsoever regarding natural substances which are not listed in the Single Convention, which are not recognised as a substance that may cause public safety issues or the potential to abuse and or harm people! Which are not listed on any dangerous substances lists and which have no evidence supporting the substances dangerous potential! The DEA have always and only ever been authorised to enforce the law on THC which is the substance that has proven to be dangerous if not controlled! The DEA have never been authorised since their creation to enforce control interceptions and being down any world CBD cartels, drug lords, organised crime CBD gangsters or CBD mules etc as quite simply, it’s not a drug! So to reiterate, No Court, Government, no entity in this planet has the control mechacnisms legally in place to have any say in this substance, which would be made up of initially, overwhelming factual evidence that would unanimously confirm without doubt that CBD has killed, harmed, been the substance that has caused harm in communities all over the world and is deadly substance that provides the same dangers as the 3 base precursor substances outlined in the narcotics drug act and single convention. They have no such Data, it simply doesn’t exist, the opposite actually which always only confirms that Natural CBD without THC is safe substance which has absolutely no negative impact on the safety of human or communities anywhere and that no scheduling or control is required by the World Health Organistaion to enforce onto any government who are a part of the leauge of nations, United Nations and part of the Roman Catholic Or the Vatican’s Supreme rule! The Court that has made this latest ruling, has convened without authority to pass and decision down on this natural CBD
    Substance, the rules have already been in force therefor acting outside of there scope of being is a violation to the constitution of the sate and world wide common law doctrine! No immunity is available to any public service person offical in any capacity any longer therefor, they are susceptible to criminal prosecution and if found guilty, which in this instance they definitely are, an act of treason against the law of the sate, constitution, carries the maximum penalty, and I will leave that to you to find the answer to as it’s definitely a penalty that ensures no further acts by the guilty party would ever occur again! So, I suggest the Court, The DEA and Amy other violating public officer or entity involvees in this latest treachery, offer a full retraction and strike this substance from any records as being one which requires any mention for reasons aforementioned, or, your exposure to the press on this will see the outcomes transpire sooner than one may anticipate.

  16. Patty Coyne on

    Odd that a State that allows cannabis as a recreational substance houses the District Court that pulled the plug on CBD which by definition so low on THC that it is incidental. I can understand that there is a need to regulate and set up some boundaries around purity and strength. Eventually the truth will surface and who has there hand in the cookie jar.

  17. James Goldberg on

    This whole Hemp/CBD thing comes down to one thing, and one ting only. GW pharmaceutical invested hundreds of millions of dollars into their wonder drug Epidiolex (CBD) to control seizures in children. They own the FDA, DEA and U.S. government. Sure Hemp will be legal some day, but the feds will carve out CBD for GW and the crumbs will be left over for everyone else. Did you really think GW would allow for CBD to be considered Hemp oil?

  18. Angela s on

    It’s all about money. Big pharma and big government can’t stop jacking each other off and the average sick citizen be damned.

  19. Kara Lise mMcCoy hempgirl on

    I think the dea doesn’t want to follow the farm bill because they are F****n lazy and may have to do more then a strip test to site test products. No due diligence or respect for the farm bill. Maybe because Obama signed it?

  20. CBD Online on

    This is so frustrating to me! Clearly Big Pharma is playing a huge role in suppresing the amazing wonders of CBD and even other Cannabinoids, Including THC! But specifically CBD as it is non-psychoactive and countless studies have proven that this compound can work miracles for people. I hope that those who need CBD continue to have safe access to it, and I wait for the day that the truth comes out on top and CBD is used everywhere legally, as nature intended!

  21. William L. WILSON Sr. on

    The Hemp Industry Daily published comments regarding the wide range discussion on the justification and legality, has broaden the scope and intensity of Industrial Hemp and it’s history and the future impact that it will have on the citizens of the US population specifically and the global community generally.

    Fantastic overview discussions, thanks for the education.

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