“Is CBD Legal? ” – Interview with Garrett Graff, associate attorney at the Hoban Law Group:
One of the most common questions that comes up with most people looking to treat their health challenges with CBD oil is: is CBD legal? What is the current legal status of cannabidiol or CBD? …considering the new DEA ruling of the CBD.
We wanted to properly address the question “is CBD legal” and who better to talk to than to a lawyer, right?
I have contacted one of the biggest if not the biggest law firm that deals with cannabis industry. The Hoban Law Group.
With a huge team of attorneys they are the nation’s only full-service, full-time, cannabis business law firm that are involved with both marijuana and industrial hemp matters.
Formed in 2009 The Hoban Law Group has been Colorado’s largest and most experienced cannabis law firm that has consistently provided expert legal advice to its clients.
So on today CuredByNature Show we are talking with Garrett Graff one of the associates in The Hoban Law Group that has taken the time to answer our questions about the current legal status of cannabidiol or CBD.
Matt: Hello Garrett thank you very much for taking the time to be on the CuredByNature Show to help us with today’s topic “is CBD legal”, current cannabidiol legal status considering the new DEA ruling.
But first let’s go back a few weeks okay, let’s go back before the DEA – drug enforcement administration made its new move and added to the confusion and actually scaring a lot of people that depend on the CBD.
But you know that there was a lot of confusion even before that in particular, people were asking is CBD legal because, you know there’s hemp, there’s marijuana, medical marijuana people don’t know what’s what and so on and so forth, you know, people were asking… if they’re from the United States do I have to import CBD from outside the United States or I can order it from another state here in the US?
Is it legal in European Union and if so… you know, how do I get it there but that’s a bigger discussion since you guys are in the United States anyway so if I was to ask you a few weeks ago »is CBD legal«? What is really the current cannabidiol legal status? What would you say?
Garrett: Sure, well first of all thank you for having me Matt it’s a pleasure to be on CuredByNature with you.
With regards to before one week ago when the DEA came out with its announcement cannabidiol is not on the Controlled Substances Act you cannot find the word cannabidiol there and thus we do not believe Congress scheduled the specific cannabinoid cannabidiol or CBD.
CBD is one of over 80 cannabinoids in the genus cannabis plant and yes there are marijuana or drug varieties of that plant but there are also industrial hemp and non-drug varieties, non-psychoactive varieties of that plant.
And so with that said it would be possible to obtain cannabidiol from the stock, the fiber, the stem, the herd of the plant, as well as from industrial hemp, from those types of varieties and from those parts of the plant,… we believe that those were, have never been scheduled by by the Controlled Substances Act by Congress and are’re not illegal substances.
That may be contrary to the DEA’s belief but uh that’s our position based on the law.
Matt: Ok now this new DEA rule set in place just a week ago adding to the whole cannabis, hemp, medical marijuana mess, adding to the confusion. What about now? Is CBD legal now? What is the current cannabidiol legal status after this new DEA rule?
Garrett: Well sure,… it really throws another wrinkle into the into the regulatory scheme of marijuana and industrial hemp. And what I didn’t mention a moment ago is it… it is possible to get cannabidiol from marijuana. So if that were the case that was certainly perhaps be an unlawful way to to source it.
However now after this DEA ruling first I would note that the DEA ruling does not go into effect until January thirteenth so nothing has changed until January thirteenth from our perspective… but now thinking about once this ruling goes into effect or if it goes into effect what’s changed it’s unclear.
Some people have said this is a benign you know very very simple drug code classification for marijuana extracts and it only applies to people who have obtained important export permits from the DEA. Which is generally pharmacists or people conducting research on marijuana. None of which are are those who are engaged in hemp oil products and dietary supplements and and that sort.
Others you know want to say “oh the sky is falling” you know this this is coming crashing down on industry. We don’t think we’re there yet either,… we’re somewhere in between.
Our concern is that the definition of marijuana extracts under this new ruling from the DEA it does not exclude the stock, the fiber, is the stem, and the herd of the plant which is excluded from the definition of marijuana and the Controlled Substances Act.
There’s case law on this from 2003 and 2004 so this new ruling from the DEA does not reflect that case law or that definition of marijuana nor does this ruling take into affect the carve-out of industrial hemp pursuant to the agricultural act in 2014 from two years ago. That carves out any part of the plan under point three percent THC by dry weight.
It’s interesting to know this proposed rule or this ruling from the DEA was first proposed five years ago. It then sat dormant for five years and was revived instantaneously last week … because this was proposed five years ago it couldn’t having contemplated the federal farm bill… the agricultural act of 2014 because that only happened two years ago.
So there’s these inconsistencies that are causing issues and some people want to say well and even the DEA I saw an article the other day that the DEA came out and said that themselves this does not impact industrial hemp you know »not to fear« and »it only impacts people who are using import export permits« and the unfortunate reality is that we see very frequently that the DEA or other federal agencies specifically referred to these drug codes not to the Controlled Substances Act as whether something is a controlled substance or not.
So even if the DEA is using the best of intentions with this new ruling there is concern that it will be misused by either the DEA or other federal agencies for purposes of precluding imports from Europe or other countries around the world as well as other you know precluding the sale of other types of products so that that’s the ultimate concern there… and while we hope for the best we certainly want to prepare for the worst as well.
So that’s what we’re doing right now.
Matt: Great,… do you think this is the big Pharma trying to mess with the CBD legal status? Is that it? Like they kind of… they seem kind of lost in this this race towards you know who’s gonna cash in?
Garrett: You know I certainly see that could be playing a part. We’ve had had several people comment that they think it’s either the outgoing Obama administration or the incoming Trump administration. You know there’s reasons for both of those theories.
I don’t necessarily know that that I buy into either of them. I do think there could be some implication Big Pharma here… the GW Pharma Apple IND application investigational new drug application seems to be progressing and I could certainly see how this movement by the DEA is an attempt to corral the CBD and hemp industry preemptively so that if and or when the GW Pharma applications are passed to make these you know these products drugs… it would try,… they would be trying to make it easier for them to enforce it at that time.
Matt: So sort of speak, to keeping the monopoly by themselves something like that, right?
Garrett: Yeah, I mean ultimately if and when the drug application has passed for GW pharmaceutical and I think there’s still an »if« there, not to mention even if it is passed, what is, what is a drug?
Because the GW Pharma applications use isolated compounds of CBD so are naturally occurring impacts tracks included in that definition as a drug?
Are different concentrations of isolated CBD included in that definition of a drug?
There’s several questions to ask but ultimately I think the point is is that the DEA in conjunction with the FDA would be trying to corral the hemp industry as a whole for enforcement to police it and that’s what I think they’re ultimately trying to do but you know to some extent still speculation.
Matt: Sure,… and then again even the success stories out there today show that it obviously the body reacts far better for the for the substances that have all the cannabinoids that the plan has to offer so sort of sort of sort of the whole plant extracts compared to the isolates. So therefore we can expect that if people are gonna try the pharmaceutical, pharmaceutical drugs where there’s going to be cannabidiol in them, there’s probably going to be cannabidiol from the… as an isolette and it’s probably not going to show that much effect compared to the you know whole plant extract. So people are going to see the difference right away… especially… those people that have been using whole plant extract as cannabis oil or CBD oil or even THC oil? Right?
Garrett: Sure I think you make excellent points.
I think what you’re referring to the entourage effect where the THC is augmented by CBD and the other cannabinoids and to get the whole full spectrum as we call it…
Garrett: You know the full spectrum effect. There’s certainly science in support of that. There’s science in suppor of cannabidiol individually as well and ultimately that science is still in development in terms of being accepted you know on a wide enough scale for the federal government to acknowledge it.
You know you and I sitting here on this interview are probably going to agree on most things… but getting a governmental agency to scientifically accept that proposition is a bit bigger of a task, so…
Matt: Absolutely. Well I understand that you guys are, you know work on this subject more from a business perspective. Even though you probably also have clients as individuals that have been, you know, legally pursued as I don’t know for for drug abuse or whatever but I understand that you’re in it mostly from the business side. But I do want to ask you from the individual, user side a few questions like… you know, people are confused… Are they allowed to buy it? Do they need to be a medical marijuana patient or they need to… you know to use the CBD? Some people even think about moving states or even countries to be allowed to use CBD. What’s up with that?… you know how people are confused are they going to be legally prosecuted or something like that if the use it, if they order it, if they order it from another state, if they order it, you know, from outside the US, from Europe? What’s up with that? What’s your take on that?
Garrett: Sure, no it’s an excellent question. You’re right that our practice generally involves regulatory and business compliance. All aspects you know including both local state, national, international even. We don’t necessarily practice criminal law… but we have our fingers throughout much of the industrial hemp industry.
With that said it really depends you know and and those individuals are confused and rightfully so.
Within the United States there are states all over the country that have different laws they’re inconsistent with federal law and they’re inconsistent with one another,… and so something that remains to be seen and still needs to be done is a what’s called a preemption analysis: does federal law trump state law or does state law trump federal law?
For the most part in terms of what might happen… I can only speak to one occasion where we’ve seen criminal charges and it was on a local County Sheriff level. Based on individual state law not federal law.
We’ve not seen very much federal involvement,… mostly federal involvement is related to the to customs or the FDA or the alcohol bureau with regards to regulatory compliance. They’re saying that hemp oil or cannabidiol doesn’t regulatory comply. We disagree with them but that’s on a civil level. In terms of it on a company or business level than on a individual or criminal level.
We have seen in some states where they have gone in and either temporarily or permanently cease products based on their interpretation of their state law. Again these are are generally infrequent few and far between. And then of course one instance of criminal charges.
So those thus far have been the exceptions not the rules but there are certain considerations and so I would encourage everyone to to become knowledgeable or seek legal counsel on their individual state laws and all the different risks and considerations.
Those are things we work with our clients on a day-to-day basis in terms of you know how do you best comply with in the the given regulatory structures and protect yourself given you know these inconsistant interpretations of law. And we feel comfortable that the farm bill authorizes domestic hemp cultivation and that you know you can import, Companies can import stock and stem and fiber heard derivatives from Europe. That’s federal law but there’s all these other analyses that need to be, need to take place as well.
Matt: Do you have any idea like for example how, the how… what’s the distinction if one extracts… you know makes CBD or a cannabis extract from stem… from everything that’s supposed to be allowed quote-unquote or if they make CBD extracts or cannabis extracts from the flowers?
Garrett: So within the United States the the definition of industrial hemp for you know domestically cultivated hemp includes the flowers… Uh-huh okay. Yeah so it’s you know the entire part of the plant under point 3 percent THC now that’s definitely for something imported from Europe or China or elsewhere where it is limited to stock fibers or herd. Your question or your point is an excellent one. It’s very difficult to do so.
We generally discuss with our clients that if they’re importing something from Europe that they obtained certifications that the supplier is supplying only derivatives from those portions of the plant that are lawful.
Within the United States you know there’s less distinction in terms of is it from the flower or from the stock and fiber but we do know discuss having certifications as to the THC content to make sure it’s below that point three percent threshold.
Now if someone were to be obtaining it for marijuana that’s an entirely different regulatory structure. That’s only in certain states within within the United States.
So if someone is seeking to obtain cannabis or marijuana oil that’s higher in THC content, that is subject to different laws and regulations and is only available in certain states within the United States.
Matt: Well… go ahead.
Garrett: I was going to say because of course marijuana is illegal under federal law here in the United States… so that’s just a different regulatory scheme.
But speaking about hemp and hemp derived hemp oil and Cannabidiols or cannabidiol, you know it’s hard to distinguish and I think that’s part of what concerns that the DEA you know I would suspect that’s the cases how do you know what is what and that’s something that we have to work through as an industry but ultimately just saying no to it is not the answer either by the FDA.
Matt: Absolutely! And that brings me actually to to my next question: now we have mentioned hemp, we have mentioned marijuana, we have mentioned cannabis and there’s a whole lot of confusion about all of that you know the terms… they are… there’s a lot of confusion with people that are not in the industry but I see articles written and they’re inconsistent,… written from the people that are in the industry. You know they just throw these terms around and sometimes using it as for medical marijuana and sometimes saying it’s cannabis, its medical cannabis, it’s hemp. So you know… how do you… like what is what? What’s hemp? What’s cannabis? What’s marijuana? What’s medical marijuana? Any other terms?
I’m always interested in this and there’s a lot of debate about it, there’s a lot of articles out there written you know that hemp is… has been sort of arbitrary presented they drew an arbitrary line between what has 0.3% THC and above and what has 0.3 or less distinction between cannabis as hemp or cannabis as marijuana. What do you say, can you talk a little bit about that?
Garrett: Yeah absolutely that’s an excellent question and it is confusing. I mean that there’s no easy answer because ultimately all the definitions vary at the federal level within the United States marijuana is defined as and I’m paraphrasing here but effectively the flowering parts of the plant and viable seeds. It excludes the stocks, fiber, stems and herd of the plant. And furthermore there’s been this newly-created definition in 2014 that industrial hemp is all parts of the plant uh that are under point three percent THC.
You are corrected that it’s an arbitrary definition.
You know some people say well industrial hemp should be 0.5 or 1.0 well you know I don’t disagree but ultimately Congress said point three so for now we need to operate under the definition of industrial hemp is all parts of the plant below point three percent THC. In terms of marijuana vs hemp, medical cannabis… Ultimately all this comes from the genus cannabis, the cannabis plant.
I generally prefer not to use the term cannabis because it could be referring to industrial hemp or to marijuana for that reason. They both come from the cannabis plant.
In Colorado marijuana or the high THC version you know, above point three percent THC is defined as marijuana.
Some people don’t like the term because it you know it’s referred to as a slang term historically or things like that but ultimately that’s what the legal definition is in Colorado. Other states use cannabis. They say medical cannabis or retail cannabis or recreational cannabis. Or now adult use is the popular term,… adult use is meant to refer to recreational cannabis or recreational marijuana.
Generally when someone says cannabis or marijuana referring to the high THC versions.
Generally some people want to refer to marijuana as cannabis because the connotation of cannabis is perhaps better than it is of marijuana.
When you’re dealing with industrial hemp most people refer to industrial hemp as industrial hemp or as hemp because it’s connotation is generally strictly as below point three percent THC and non-psychoactive.
But again it depends on every single States law they use different phrases and different terms but that generally I think the general idea of what the different terms mean.
Matt: That’s, that’s actually what my idea was after I studied everything I could get my hands on on on the internet about whether something from the cannabis is called hemp or is it called marijuana or something else.
Now my last question would be what are we to expect like from JAN,… you say that new DEA ruling comes into play only in january after January 13 2017, which is not that far ahead so what are we to expect?
The ones that are doing you know CBD that are in the CBD industry or the patients that sort of rely on getting a CBD and getting relief and help from CBD, the cannabidiol?
Garrett: Sure, so I mean there certainly concerned in terms of what is going to happen and to some extent we’re just speculating at this point. You know currently our firm within our network we are evaluating the different options from diplomatic resolution to the DEA, a law sue, administrative challenges to the ruling because we think the DEA acted with outside of its authority.
You know all these options are on the table being actively discussed.
Ultimately you know before January thirteenth I don’t see much changing. After January 13 you know anything could happen.
I mean on january shortly thereafter within a week President elect Trump will take office so you know that there’s rumors or or people who want to think that something will change once he takes office. I think that he surrounded himself with practical pragmatic people. And I don’t think he’s going to adversely affect the industry.
My concern remains that even today there are shipments of product being seized at customs and being, seeing other adverse effects by customs, the FDA, the alcohol bureau, all of which are sideing DEA drug codes. Other ones, not this new one.
So after January thirteenth I think this new drug code gets added as yet another citation by these other agencies of reasons why something cannot be imported or used in commerce. Does that happen right away? Does that happen consistently?… you know is it only by federal law enforcement or the state law enforcement get involved?
Those are all questions that remain to be seen and then hopefully we never come to see them, hopefully by then we’ve either resolve this issue directly with the DEA or initiated some type of action that will stall any enforcement of this action until it is resolved by court or administrative body.
Matt: Great answer thanks and yeah well the industry the hemp as well as the medical marijuana or just marijuana now however you want to call it is actually quite strong it’s a multi-billion dollar industry so I take it, you know, they can get into a fight.
Garrett: I think there’s plenty of opportunity for a fight. You mentioned how big the industry is there’s a thing called the administrative review Act. Which essentially is anything that has above a hundred million dollar impact on the economy my subject to administrative review.
So that’s one of the avenues which we could try to challenge this, this ruling, but as I said we’re keeping all options are open for the moment and trying to prepare the best strategy and the most effective strategy that is supportive of the industry and we’ll go from there.
Matt: Well Garrett thank you so much for taking the time. I think that the subject whether or not CBD is legal and what’s the legal status of cannabidiol CBD is much clearer now than it was before too many. What will happen after the January 13 will see and I actually hope that we might be able to schedule like perhaps another interview after the things get more turbulent or maybe after things settle down and we can take a fresh look at where the industry is, what patients can expect so that, you know, we can calm this situation down and people that are afraid of what might happen to them can be, you know, can feel more secure and so on and so forth. So for now thank you very much and… well I’ll talk to you in the New Year’s.
Garrett: Well thank you Matt, I appreciate you taking the time and having me on the show and I’ll be looking forward to speaking to you again soon following up and happy holydays to you Thank you,… you too man.
Matt: So thanks again to Garrett from the Hoban Law Group that has put some professional »lawyer« light on the current legal status of the cannabidiol or CBD. Now if you want to stay on top of the current legal changes going on in the whole hemp, CBD, medical marijuana industry, if you want to get more information about CBD how it works and if CDB would work for your health issues, if you want to see some of our clients talk about their success stories with CBD and how it has worked for them… …make sure you subscribe to our YouTube channel here and make sure you also go to our website CuredByNature.org to get the Free Ebook about CBD. If you liked this episode make sure you share it with your friends and relatives and everybody that you think that would need this advice. Make sure you give us some thumbs up and make sure you put a comment down below! If you have a question you can also just send us an email to support@CuredByNature.org and I will make sure you get some fast answers! I will see you next.