On Wednesday, the DEA took yet another swipe at marijuana by amending its already bizarre classification of pot as a Schedule I drug. Now, all extracts, 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. The DEA recently rescheduled certain CBD products from Schedule 1 to Schedule 5, but cannabis is still considered Schedule 1. Find out if you can now legally purchase CBD in your state.
DEA Quietly Classifies CBD Oil as Schedule 1 Drug
On Wednesday, the DEA took yet another swipe at marijuana by amending its already bizarre classification of pot as a Schedule I drug. Now, all extracts, including cannabidiol (CBD), will be listed right up there with heroin as a “drug with no medical use.”
Tell that to the thousands of epilepsy sufferers, who are mercifully enjoying relief from intractable epilepsy and polymorphic seizures.
Under their new drug code, entitled “Establishment of a New Drug Code for Marihuana Extract,” the DEA announced it was “creating a separate code number for marihuana extract with the following definition: ‘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.’ Extracts of marihuana will continue to be treated as Schedule I controlled substances.”
The DEA is essentially giving itself license to better track which scientists are studying marijuana and which ones are researching CBD and other extracts. At the moment, when researchers apply to the DEA for permission to study weed, there’s no way for them to specify whether they intend to only work on extracts.
“It’s an internal accounting mechanism for us,” DEA spokesperson Russell Baer told VICE News. “The purpose is to drill down and get more accurate information about research that’s being conducted with CBD in particular.”
In addition to the fact that this move is likely illegal, it is clearly backward and could obstruct medical research efforts that have already produced effective CBD-derived medications. One such medication is Epidiolex, developed by GW Pharmaceuticals for the treatment of Dravet’s Syndrome, which recently came one step closer to FDA approval.
“This action is beyond the DEA’s authority,” Robert Hoban, a Colorado cannabis attorney and adjunct professor of law at the University of Denver, told the International Business Times. “The DEA can only carry out the law, they cannot create it. Here, they’re purporting to create an entirely new category called ‘marijuana extracts,’ and by doing so wrest control over all cannabinoids. They want to call all cannabinoids illegal. But they don’t have the authority to do that.”
The idea of classifying weed and now CBD, as well as cannabis extracts (psychoactive or not), as a Schedule 1 drug, along with heroin is nothing less than an outrage.
You can keep up with all of HIGH TIMES’ marijuana news right here .
CBD Has Never Been A Controlled Substance
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.
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.
Hemp-derived CBD oil
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?
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.
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.
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Yet complexities and legal challenges remain. Greenwich Biosciences (the North American subsidiary of GW Pharmaceutical) had received approval for the new drug, Epidiolex, which was identified and placed on schedule V. While CBD was not defined as schedule V, Epidiolex was because the CBD present in it is derived from marijuana. But as with every other aspect of the growth of the cannabis industry, the law rules. The makers of Epidiolex recently requested that it be removed entirely from the schedule of substances and the DEA agreed with this request.
When derived from lawful materials such as hemp, CBD and other non-psychoactive cannabinoids are not controlled substances because they’re not specifically scheduled. Still, there is pushback. Some folks refer to the Analogue Act, a section of the CSA passed in 1986 allowing any chemical similar to a schedule I or II substance to be listed as schedule I if it’s intended for human consumption. However, CBD is not identified as a chemical in schedule I or schedule II and is one of more than 100 identified cannabinoids contained within the cannabis plant.
The nexus of cannabis law, policy, and regulations has evolved a great deal in the past decade. Prior to the 2014 and the 2018 Farm Bill there was no legal distinction – it was all marijuana. Now, our definitions of cannabis are rooted in science and a plant’s legality is judged based on its chemical makeup.
Despite the perceived uncertainty regarding the legality of the compound CBD, we can officially put it to rest. Unless derived specifically and strictly from a marijuana plant, CBD is not now, and has never been, a controlled substance.
Is CBD a Schedule 1 Drug?
Recent changes to federal legislation categorized certain CBD products as Schedule 5 substances, which are considered to be the least dangerous and addictive.
Written by Cathy Rozyczko — Edited by Jason Brett on September 27, 2021
The short answer: Yes…and no.
If you’ve been following the national conversation about cannabis, you may have felt confused at one point or another. The legalities that surround cannabis and cannabis-derived products like CBD oil are complex, and there’s a lot of conflicting information out there.
In September 2018, the United States Drug Enforcement Administration (DEA) released an official statement , outlining their removal of “FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols [THC]” from the list of Schedule 1 drugs. However, cannabis remains a Schedule 1 drug.
Don’t worry. Below you’ll find information on how marijuana and CBD fit into the DEA’s drug schedule and more importantly, learn whether purchasing CBD oil is the right—and legal—choice for your situation.
Schedule 1 vs. Schedule 5 Drugs
The DEA divides drugs, substances, and certain chemicals into one of five categories, or “schedules” . The DEA considers Schedule 1 (I) drugs to be the most dangerous and addictive and Schedule 5 (V) drugs to be the least, with Schedule 2 (II), 3 (III), and 4 (IV) drugs falling somewhere in between.
Schedule 1 drugs are defined as having no currently accepted medical use and the highest potential for abuse. Examples of Schedule 1 drugs include heroin, LSD, cocaine, methamphetamines, and cannabis.
The DEA defines Schedule 5 drugs as medications containing low quantities of narcotics (i.e. opioids) and having a relatively low potential for abuse. Some examples of Schedule 5 drugs include Robitussin AC, Lyrica, anti-diarrheal medications, and now Epidiolex, which contains CBD and is commonly used to treat epilepsy in children with Dravet syndrome and Lennox-Gastaut syndrome.
CBD products can fall into either the Schedule 1 category or the Schedule 5 category depending on the ingredients, FDA approval, and perhaps most importantly, where they’re being purchased.
The First Schedule 5 CBD Product
Historically, any product containing an extract from the cannabis plant, like CBD oil, was classified as a Schedule 1 drug. Now though, there’s an exception.
The DEA announced in September 2018 that cannabis-derived CBD products could have Schedule 5 status, as long as they have:
- THC levels of 0.1% or lower.
- Been approved by the U.S. Food and Drug Administration (FDA).
Despite cannabis having been a Schedule 1 drug since 1970, the FDA approved Epidiolex, a CBD-based medication for epilepsy in June 2018. If the DEA had not made the above CBD reclassification in September, Epidiolex would not have been available under prescription. (It is for this same reason that physicians who practice in certain states are only able to recommend CBD to their patients, not prescribe it.)
Unfortunately, the FDA is very selective in which products it approves, and at the time of this writing, Epidiolex remains the only CBD product that falls into the Schedule 5 category.
Because cannabis and its derivatives are in the Schedule 1 category, non-Epidiolex CBD products are also considered to be Schedule 1 substances on the federal level (your state has the final say as to whether cannabis and CBD specifically are safe and legal for consumption—more on that below).
But cannabidiol is just one component of the whole cannabis plant, and it’s important to understand the distinction between the two.
CBD and Cannabis: What’s the Difference?
The Cannabis sativa plant can be broadly split into two varieties: hemp and marijuana. Both plants contain over 100 cannabinoids, including cannabidiol (CBD) and tetrahydrocannabinol (THC) . While marijuana has a high THC content, hemp is richer in CBD. It’s THC that produces the intoxicating, high-producing effects felt by people who smoke marijuana. CBD, on the other hand, is not intoxicating and will not get you high.
CBD is extracted from the hemp plant, meaning it naturally contains low levels of THC. Furthermore, CBD product makers typically try to isolate the CBD as much as possible knowing they have customers who’d like the benefits of CBD without the high of THC.
Though, the very fact that CBD is derived from the cannabis plant places it into something of a legal quagmire, despite the fact that cannabidiol does not negatively impact your mental or physical capacities. For now, on the federal level, CBD oil and other cannabidiol products remain Schedule 1 substances (except for Epiliodex).
Federal Law vs. State Law
So, if most CBD products are classified as Schedule 1 drugs, why are they available for sale online , in wellness stores, coffee shops, and even certain Walgreens and CVS locations ?
With the passing of the 2018 Farm Bill and an ever-growing amount of research being published about the potential health benefits and medical uses of CBD , many states have taken legalization into their own hands. Now, a majority of states have either decriminalized or legalized the use of cannabis products, including CBD oil.
State-Specific Laws on CBD
Depending on the state in which you live or in which you want to purchase CBD, the DEA’s drug scheduling system may be of the utmost importance, or it may not matter at all. In terms of CBD availability, states can be split into three groups: red states, amber states and green states.
Red states are in line with federal law, meaning any cannabis products, including CBD oil, are illegal. Currently, the red states are:
- South Dakota.
If you live in one of these three states, you won’t legally be able to purchase or consume CBD products. As more research is conducted and the stigma around CBD use continues to disappear, you could see a change in the (hopefully) near future.
Amber states allow some CBD products to be sold under certain conditions, specifically, for medical use. In order to legally purchase CBD oil in amber states, you may need to possess a medical marijuana card or have a prescription from your doctor. Currently, the amber states where it’s legal to purchase and use any cannabis product—including those with THC—for medicinal purposes are:
- New Hampshire.
- New Jersey.
- New Mexico.
- New York.
- North Dakota.
- Rhode Island.
- West Virginia.
Amber states where it’s legal to purchase cannabis only in the form of CBD products for medicinal purposes are:
- North Carolina.
- South Carolina.
So, if you live in an amber state, it’s especially important you be familiar with the laws specific to cannabis and CBD products. In some states, you can legally purchase any cannabis-derived products for medical reasons; in others, you can legally only purchase CBD products (with little to no THC) for medical reasons.
Green states are the most flexible of all and allow for the sale and consumption of cannabis and cannabis-derived products for medicinal and recreational purposes. Currently the green states include:
- Washington D.C.
If you live in one of these 11 states you can buy anything from ‘special,’ THC-infused brownies to CBD oil, as long as you meet the minimum age requirements. In green states, you will find CBD oil available in a large number of stores and will only need a photo ID in order to make a purchase.
Purchasing CBD in Your State
CBD is considered illegal under federal law, but your state’s laws take precedence.
If you live in a green state that allows for the sale and consumption of cannabis products for any reason, or an amber state that allows cannabis or CBD for medical reasons and you qualify, it’s perfectly legal for you to buy and use CBD products.
If you’re interested in using CBD oil or related CBD products and it is legal in your state, don’t hesitate to speak to your primary physician about it. You can also speak to a cannabis doctor for more information on using CBD to treat certain conditions.
The information contained in this page is meant to serve as an educational tool and should not be substituted for legal advice. While this article was correct at the time of publishing, it is wise to get up-to-date, state-specific legal information before making any CBD purchase.