Hemp-derived CBD oil
For something to be a controlled substance under the Federal Controlled Substances Act (CSA), it must be specifically scheduled and assigned one of five scheduling criteria. Schedule I is the most restrictive, which indicates that this controlled substance has no medicinal value and a high potential for abuse. Schedule V, the least restrictive, indicates a drug with currently accepted medical uses and treatments in the United States and a low potential for abuse. Schedule V drugs typically consist of preparations containing limited quantities of certain narcotics, but not always. When one combs through the CSA, the word “cannabidiol” or “CBD” is nowhere to be found — not in the code of federal regulations or in the enacting legislation. One must look deeper to find out what is scheduled and what is not.
The only cannabinoid mentioned in the CSA is tetrahydrocannabinol, THC, the psychoactive compound in cannabis. While it is specifically scheduled, courts have disagreed on whether THC needs to be synthetically or naturally derived to fall within the definition of tetrahydrocannabinol under the CSA. Six years ago, industrial hemp was for the first time ever defined separately from marijuana as holding less than 0.3 Δ9-THC percent by dry weight. The 2014 Farm Bill specifically authorized the use of industrial hemp as a legal substance for purposes of market, scientific, and agricultural-based research. The CBD industry exploded because of the “market-based research exception” — one could only study the plant with a viable market in place for its products. This position was litigated in 2018 in HIA v. DEA III and the restrictions were removed by the 2018 Farm Bill.
First, let’s look at the definition of marijuana with an “H” (marihuana), which is indeed scheduled. This comprises all parts of the Cannabis Sativa L. plant, excluding non-viable seeds stock and fiber, but including the resins and the remainder of the plant. CBD, of course, is present within the marijuana plant. If you derive CBD from the marijuana plant, it would in fact be controlled, because it came from a controlled substance. This is known as the “source rule” — the source of the material dictates its legality. But what if CBD and other non-psychoactive cannabinoids are derived from a legal source, such as the 25 other plant species that contain levels of cannabinoids or industrial hemp?
My job is to shed light. Most specifically on the great intricacies of cannabis law, policy, and regulation. The past several years have seen extensive debate about the legal status of cannabidiol (CBD). Is it legal? Was it ever a controlled substance? How is it regulated? Lawyers, industry professionals, and learned scholars debate this with so much vigor that it creates confusion, if not a misstatement of the facts. It hurts my ears and burns my eyes to hear or see an argument that identifies CBD as a controlled substance, because the law is quite clear in this regard.
The industrial hemp plant is no longer a controlled substance, including all of its derivatives, not the least of which is THC. Even THC from industrial hemp is no longer defined as a controlled substance (we’ll dive into this in more detail at a later time). The 2018 Farm Bill didn’t remove CBD from the Controlled Substances Act, but clarified that it was never on it. To be perfectly clear, if CBD is derived from a lawful substance, it is not and never has been a controlled substance. That’s a fact and the law.
With different forms of cannabis being legalized on both a state and federal level, CBD’s class schedule continues to be complex and confusing for some. All the while,, the CBD market continues to skyrocket as more and more companies produce, distribute, and sell CBD products, and as consumers across the world buy CBD products in increasing numbers.
To meet federal legal criteria, CBD oil must contain no more than 0.3 percent THC. Photo by: Gina Coleman/Weedmaps
This has put CBD into an interesting legal position, leading to confusion of whether CBD oil is a federally restricted Schedule I substance or is now federally legal. At the federal level, legality all depends on what type of plant the CBD comes from, as well as how much THC is present in both the original plant and the final product.
The DEA and US Food and Drug Administration (FDA) are in charge of determining which substances should be added, removed, or re-classified. Schedule I substances are presumed to be the most dangerous with a high potential for abuse and no perceived health benefit and tend to be the most heavily criminalized, while Schedule V substances as defined as drugs with the lowest potential for abuse. Examples of Schedule I drugs include heroin, methamphetamines, LSD, and cannabis.
On the other hand, if your definition of the word “drug” refers to an intoxicating substance that alters your central nervous system, perception, mood, consciousness, or generates mind-altering effects, then most experts would say that no, CBD is not a drug.
Under federal law, CBD that is derived from cannabis plants with more than .3% THC is considered illegal, as the intoxicating cannabinoid remains a Schedule I substance. If the cannabis plant has more than .3% THC, then all substances derived from it — including any CBD extracted from the plant — are considered by the DEA to be a federally restricted Schedule I substance.
According to the DEA, these categories are based upon the drug’s abuse or dependency potential as well as its acceptable medical use. However, it’s important to note that this classification system has frequently been called into question by people who are concerned that law enforcement uses the CSA to overly criminalize substances that may not actually be as dangerous as the DEA states.
Is CBD a Schedule 1 drug?
Federal classification of CBD is one of the biggest areas of confusion still surrounding CBD, CBD oil, and other CBD-infused products, leaving some to wonder: Is CBD or CBD oil a Schedule I drug?
To date, researchers have identified several health benefits and possible therapeutic uses of CBD, including anti-inflammatory, anti-anxiety, and numerous neuroprotective qualities.