Despite the distinction between industrial hemp and marijuana, confusion arose when DEA propagated the Marijuana Extract Rule, which defined a marijuana extract as “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.” In other words, the legal distinction between marijuana and hemp was collapsed; anything extracted from any cannabis plant, even if it had less than 0.3% THC, would be considered a marijuana extract and thus a Schedule 1 drug. On its face, this rule would expand DEA’s enforcement to cover extracts from industrial hemp despite the Farm Act, because industrial hemp is a plant of the genus Cannabis (to be sure, it is the exact same plant).
CBD can be derived from industrial hemp, which is marijuana that does not have THC in it.
DEA has since backed away from this strict interpretation, but they have not yet revised the language of the rule. The question remains: is CBD, regardless of whether it comes from a marijuana plant or a hemp plant, a Schedule 1 drug or not? Will the DEA come after you for producing or selling CBD?
When it comes to hemp, DEA’s hands are tied for a couple of reasons. The first is based in the Constitution. Executive branch agencies, like DEA, can make real world enforcement rules based on laws, or acts, passed by Congress, but they can’t rewrite the laws themselves. Here, that means the DEA’s Marijuana Extraction Rule cannot trump Congress’s Controlled Substances Act or the Farm Act, both of which expressly deal with cannabis in general and both marijuana and hemp in particular.
Congress has both legislated a path to legal CBD, as well as defunded any ability for criminalization to be prosecuted by DEA
Second, in the Omnibus Appropriations Act of 2016 (Funding Act) Congress forbade DEA from using federal funds to go after industrial hemp. So not only is there a legal problem, but DEA doesn’t have the money to go after hemp growers.