Regarding cannabis laws, the federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. § 811). Unfortunately, this regulation does not recognize the difference between medical and recreational cannabis. In addition, the laws don’t differentiate between marijuana and hemp. Let us delve a little deeper into the differences between the various cannabis laws.
The Marijuana Extract Rule
In 2016, the Drug Enforcement Administration (DEA) enacted the marijuana extract rule. This rule classifies marijuana extracts as also being Schedule 1 drugs. The Marijuana Extract Rule also created a new code for them (7350). However, this code does appear to exempt extracts that are derived from lawfully grown industrial hemp. Furthermore, the rule seems to exempt extracts that are derived from parts of the cannabis plant that are not included in the CSA’s definition of marijuana. To clarify, the portions of the plant that this rule excludes are the mature stalks and seeds which are incapable of germination.
What body of law governs marijuana?
On August 29, 2013 the Department of Justice (DOJ) issued a guidance memo (known as the Cole Memo) to prosecutors concerning marijuana enforcement under the CSA. Interestingly, this memo made it clear that prosecuting medical marijuana cases should not be a priority. Most noteworthy, the memo included eight guidelines for prosecutors to use to determine whether something is a current “federal enforcement priority.”
These 8 guidelines include preventing the following:
- The distribution of marijuana to minors.
- Revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels.
- The diversion of marijuana from states where it is legal under state law in some form to other states.
- State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity.
- Violence and the use of firearms in the cultivation and distribution of marijuana.
- Drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use.
- The growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands.
- Marijuana possession or use on federal property.
“The Cole Memo represented a significant shift in the federal government to de-prioritize the use of funds to enforce cannabis prohibition under the Controlled Substances Act towards a more laissez-faire, hands-off approach.” (Leafly.com)
After the Cole Memo was instated, most federal prosecutions were stopped. That is, unless the persons involved met the above listed criteria.
What body of law governs hemp?
The cannabis laws governing hemp are contained within the 2014 Agricultural Act (aka The Farm Bill). First of all, this legislation allows for a differentiation between industrial hemp and marijuana. It defines that:
“The term ‘industrial hemp’ includes the plant Cannabis sativa L. and any part or derivative of such plant, including seeds of such plant, whether growing or not, that is used exclusively for industrial purposes (fiber and seed) with a tetrahydrocannabinols concentration of not more than 0.3 percent on a dry weight basis.” (National Institute of Food and Agriculture)
Furthermore, the Act spells out the main two criteria for growing industrial hemp. First, the hemp farming must be conducted in a state that has legalized the production of hemp. Secondly, “the researcher must either (a) be an institution of higher education or state department of agriculture or (b) grow the industrial hemp under the auspices of a state agricultural pilot program.”
Despite this Act, there is still confusion over hemp. The confusion lies in the Drug Enforcement Administration’s enforcement of laws that classify hemp and “marihuana” as one and the same.
Newly Proposed Legislation
Finally, on April 12, 2018 Senators Mitch McConnell (R-KY), Ron Wyden (D-OR), and Jeff Merkley (D-OR) introduced the Hemp Farming Act of 2018. This legislation — Senate Bill 2667 — would legalize hemp and have it removed from the list of controlled substances.
The Act defines “hemp” as:
“the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-0 [THC] concentration of not more than 0.3 percent on a dry weight basis.”
This definition sounds remarkably similar to the one in the 2014 Agricultural Act, doesn’t it?
Senator McConnell describes the details of this newly proposed legislation:
Furthermore, the new bipartisan legislation would eliminate confusion between hemp and marihuana once and for all. Finally, the legislation would recognize “in federal statute the difference between hemp and its illicit cousin.”
In conclusion, only time will tell how this “hemp movement” will progress. So, it will be interesting to see what positive changes will be brought to the CBD community.
Read more about the legalities of CBD.