14 December 2016

Deja Vu? Is the DEA Unlawfully Attempting to Outlaw All Cannabinoids…Again?

December 14, 2016

From HLG Managing Partner Robert Hoban:

“The feeling is that this is an action beyond the DEA’s authority and we believe this is unlawful and we are taking a course of action for our clients. This Final Rule serves to threaten hundreds, if not thousands, of growing businesses, with massive economic and industry expansion opportunities, all of which conduct lawful business in reliance upon the Federal Government also acting pursuant to

law, and as ordered by the Ninth Circuit in 2003 and 2004. We will see the Federal Government in court.

I.               INTRODUCTION

The Drug Enforcement Administration (DEA) has, yet again, demonstrated its lawless recalcitrance for the prevailing law. A new Rule published in the Federal Register, and currently set to become effective on January 13, 2017, seeks to control all naturally occurring cannabinoids from the Cannabis sativa L plant.  The DEA attempted something very similar in 2003, and the Ninth Circuit Court of Appeals rejected its efforts as unlawful and beyond the scope of the DEA’s delegated Congressional authorization.  But, here we go again.

Within the framework of existing laws, a robust cannabis industry, including consumer, textile and manufacturing industries based around non-psychoactive varieties of the Cannabis sativa L. plant and derivatives and cannabinoids derived therefrom, has evolved from the efforts of thousands of companies across the United States and globally. These industries, which already exist in the European Union, Latin America, Canada and China, among other countries, are rapidly growing, creating vast economic opportunities along with job creation. Absent a reversal or the striking of the DEA’s Rule, these businesses and industries stand to suffer a devastating impact from this Rule. To protect these individuals, businesses and this industry, the DEA’s actions cannot be overlooked

More specifically, on Tuesday, December 14, the Federal Register published information concerning a Final Rule enacted by the DEA pertaining to a change to 21 CFR 1308. In sum, the DEA has created a new Administration Controlled Substances Code Number for “Marihuana Extract.”  According to the Federal Register, “[t]his code number will allow DEA and DEA-registered entities to track quantities of this material separately from quantities of marihuana” in order to comply with “relevant treaty provisions.”  There are a number of unusual things about this DEA action; not the least of which is that it appears to be, yet again, outside of the scope of the DEA’s power and authority as it pertains to the legality and regulation of the Cannabis sativa L plant.

The fact that the DEA, an unelected government body with no legislative authority, is attempting to outlaw all cannabinoids is concerning and problematic as it pertains to portions of the plant not legally defined as “marihuana,” and as it pertains to lawfully cultivated and processed Farm Bill-compliant industrial hemp.  The discussion below addresses many of the salient reasons why the DEA’s most recent action cannot stand, and outlines an action plan accordingly.

Read Hoban Law Group’s Entire 7-Page Analysis Here. 

Or read it here…