Without regard for clear Congressional intent, the United States Drug Enforcement Administration (DEA) continues to act contrary to the express authorizations provided for in Section 7606 of the Agricultural Act of 2014 (the “Farm Bill”) and the Ninth Circuit Court of Appeals’ order in HIA v. DEA III (April 2018). DEA even admitted in that case and its own directive that cannabinoids themselves are not controlled substances, yet now they assert a contradictory position.
In an order that is anticipated to be formally published on September 28, 2018, the DEA is issuing an interim final rule which would place Epidiolex in Schedule V of the Controlled Substances Act, after FDA’s approval of Epidiolex in June 2018, a press release reports. However, in re-scheduling Epidiolex, the DEA overbroadly references not only Epidiolex but additionally any CBD product “derived from cannabis.” Yet again, DEA fails to distinguish such products derived from lawful hemp as being exempted from the DEA’s authority and the CSA.
To be clear, the 2014 Farm Bill provisions authorize the cultivation of industrial hemp, and corresponding budgetary legislation (spending provisions) protects the transport, processing, sale, and use of all parts of that hemp across state lines. To this end, the Ninth Circuit Court of Appeals confirmed that Farm Bill hemp is not to be treated as a controlled substance, as the Farm Bill pre-empts the Controlled Substances Act.
While the DEA’s handling of Epidiolex was expected, the agency’s seeming disregard for the, court orders, and its own admissions as to the lawfulness of hemp continues to occur.
This action further underscores the importance, perhaps now more than ever before, of Congress working through its differences and enacting the 2018 version of the Farm Bill, despite recent news this week that those efforts may be delayed until after the November mid-term elections. We note, however, that while we expect hemp to be fully protected in the 2018 Farm Bill, it is more so a function of when the 2018 version of the Farm Bill will be passed by this Congress.
“Given DEA’s tendency to misinterpret and ignore legislation, judicial decisions and its own directive regarding hemp, our firm will swiftly evaluate all available options and remedies for judicial action as in prior HIA v. DEA cases as well as administrative action through notice-and-comment on this new, misguided DEA action,” said Hoban Law Group Managing Partner Bob Hoban.